State v. Sellers

777 N.W.2d 779

279 Neb. 220

STATE of Nebraska, appellee, v. Terry J. SELLERS, appellant.

No. S-08-434.

Supreme Court of Nebraska.

January 15, 2010.

Clarence E. Mock, Oakland, and Denise E. Frost, of Johnson & Mock, for appellant.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.

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

GERRARD, J.

I. NATURE OF CASE

Terry J. Sellers was convicted of two counts of first degree murder, one count of attempted murder, and three counts of use of a deadly weapon to commit a felony in connection with those charges. Sellers appeals, arguing that the district court failed to properly instruct the jury and that his counsel was ineffective in failing to object to those jury instructions. Sellers also asserts that the court erred in refusing to allow the admission of evidence seized during the arrest of a State's witness and in overruling his motion for mistrial after alleged misconduct by a prosecution witness and her attorney at trial. Finding no error, we affirm Sellers' convictions and sentences.

II. BACKGROUND

Viewing the evidence in a light most favorable to the State, as we must, the prosecution witnesses generally testified that Sellers and Taiana Matheny engaged in a scheme whereby Matheny would lure men to secluded locations so that she and Sellers could rob and murder them. The State's evidence indicated that over the course of about 4 days in late February 2005, Sellers and Matheny successfully robbed and shot to death two men, Kevin Pierce and Victor Ford, and robbed and unsuccessfully attempted to murder another, DaWayne Kearney.

Sellers and Matheny were arrested after their confrontation with Kearney went awry. Sellers was charged with two counts of first degree murder for the deaths of Pierce and Ford, one count of attempted murder of Kearney, and three counts of use of a deadly weapon to commit a felony in connection with those charges. Matheny testified against Sellers at trial pursuant to a plea agreement, and her testimony was the foundation of the State's case against Sellers. Sellers, who also testified at trial, denied Matheny's accounts of the killings.

Sellers was convicted of all charges. He was sentenced to life imprisonment for the murders of Pierce and Ford, 40 to 50 years' imprisonment for the attempted murder of Kearney, 50 to 50 years' imprisonment each for use of a weapon to commit the Pierce and Ford murders, and 40 to 50 years' imprisonment for use of a weapon to commit the Kearney felony. The sentences were to be served consecutively. Sellers has appealed through new counsel. Other facts relevant to the specific issues raised on appeal will be set forth below as necessary.

III. ASSIGNMENTS OF ERROR

Sellers assigns, renumbered and restated, that (1) the trial court erred in denying Sellers' motions for mistrial and for a jury instruction, after prejudicial conduct by a prosecution witness and her attorney during trial; (2) the trial court erred in giving jury instruction No. 22; (3) the trial court erred in giving jury instruction No. 24; (4) the trial court erred in refusing to permit Sellers to adduce evidence of two handguns seized from the residence where Kearney was arrested; and (5) Sellers received ineffective assistance of counsel at trial, because his counsel failed to object to jury instructions Nos. 22 and 24.

IV. ANALYSIS

1. DISTRICT COURT DID NOT ERR IN OVERRULING MOTION FOR MISTRIAL

Sellers first asserts the district court erred in failing to grant him a mistrial, or a jury instruction, because of prejudicial acts and statements by Matheny and her counsel at trial. Specifically, Sellers argues that his trial was tainted by Matheny's weeping and vomiting during her testimony and by an attorney-client objection voiced by Matheny's attorney from the gallery.

(a) Standard of Review

The responsibility for conducting a trial in an orderly and proper manner for the purpose of ensuring a fair and impartial trial rests with the trial court, and its rulings in this regard will be reviewed for an abuse of discretion.¹ The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.² 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.³

(b) Matheny's Conduct During Testimony

(i) Background

Matheny testified generally that the killing of Pierce was the end result of a sequence of events that began when she met Pierce at a gas station, flirted with him, and got his telephone number. Later that night, Matheny, Sellers, and Sellers' cousin, Terrell Thorpe, went to an apartment complex where Matheny had arranged to meet Pierce. While waiting for Pierce to arrive, Sellers asked Matheny if she was afraid of guns and she replied no. Matheny also testified that while waiting for Pierce to arrive, Sellers stated that "somebody was going to die that night." When Pierce arrived, Matheny exited her vehicle and walked Pierce around the building to where Sellers and Thorpe were waiting. Sellers and Thorpe rushed Pierce, put him on the ground between the garage and a Dumpster, and went through his pockets. Matheny testified that Sellers told her to go through Pierce's pockets. But Matheny was unable to get into the pockets, so she removed Pierce's pants and shoes. Sellers knelt down next to Pierce's head and gave Matheny a glove. Sellers placed a gun at the base of Pierce's head. Matheny testified that Sellers placed her hand, with the gun, at the base of Pierce's head. She pulled the trigger.

During Matheny's testimony about the killing of Pierce, Matheny cried a great deal and, unexpectedly, vomited into a trash can. Shortly after Matheny vomited, the court took a recess "so that [Matheny] can compose herself and get cleaned up, and the jury has — is in their jury room." At that point, Sellers' counsel made a motion for mistrial, outside the presence of the jury, arguing that Matheny's conduct was "highly prejudicial to [Sellers], and it was done in front of the jury." Sellers' counsel pointed out that Matheny "[has] been weeping out loud during most of her — the second part of the testimony." Sellers' counsel noted that unlike Matheny's testimony at trial, in her previous statements to police, "nothing of this nature, crying, carrying on, ever happened." Sellers' counsel asserted that the jury was "quite distressed" by Matheny's conduct. The court overruled the motion for mistrial.

Sellers then requested a jury instruction, before testimony resumed, which would admonish the jury that it was to disregard Matheny's conduct and that no sympathy for witnesses should enter into its deliberations. The court also overruled that request, stating that the jury would be instructed during the instruction phase that "sympathy or prejudice or bias shall not be a part of [its] deliberations or consideration." Sellers argued that the end-of-trial instruction was insufficient, but the jury was instructed as set forth above.

(ii) Analysis

A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.⁴ Egregiously prejudicial statements of counsel, the improper admission of prejudicial evidence, and the introduction to the jury of incompetent matters provide examples of events which may require the granting of a mistrial.⁵

We have reviewed episodes of emotion during trial on several occasions. In Wamsley v. State,⁶ we recognized that when there are outbursts of emotion in the courtroom, it is within the sound discretion of the trial court to deal with them in such a manner as to best preserve the judicial atmosphere and ensure a fair and impartial trial for the defendant. In that case, a rape prosecution, we held that the defendant was deprived of a fair trial because of the cumulative effect of prejudicial acts and statements at trial.

The prejudicial acts in Wamsley included emotional outbursts by the victim and her father and improper conduct of a county attorney expressing his personal opinions in argument to the jury. Some of the victim's outbursts were heard throughout the floor of the courthouse on which the courtroom was located. And at one point during the victim's cross-examination, her father rose from the audience and stated, "`That's enough,'" and then proceeded to the witness stand and assisted the victim down from the stand.⁷ The trial court took no action. The trial court later overruled a motion for mistrial and did not admonish the jury to disregard the outbursts. We held that the defendant in Wamsley was denied a fair and impartial trial, noting that sympathy for the victim and hostility toward the defendant could have been alleviated by, among other things, rebukes to those who violated established rules of conduct and admonishing the jury to disregard such incidents and to return a dispassionate verdict based solely on the evidence before it.

By contrast, in State v. Scott⁸ we examined whether an elderly witness' tearful conduct prejudiced a criminal defendant charged with shooting that witness and killing her husband. In Scott, the witness stumbled while leaving the witness stand and began to weep because of an injury to her leg. We affirmed the trial court's decision to overrule the defendant's motion for mistrial, noting that the witness had shown no emotion during her testimony and that her weeping was the result of her stumbling and hurting her leg, not her testimony. Unlike Wamsley, the Scott court admonished the jury not to consider the incident, because it had no bearing on the guilt or innocence of the defendant. We concluded...