State v. Brown

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/18/2019 09:08 AM CST

- 53 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

State of Nebraska, appellee, v.

Rolander L. Brown, appellant.

___ N.W.2d ___

Filed January 18, 2019. No. S-17-1039.

1. Constitutional Law: Search and Seizure: Motions to Suppress:

Appeal and Error. When reviewing a trial court’s ruling on a motion

to suppress based on a claimed violation of the Fourth Amendment, an

appellate court applies a two-part standard of review. Regarding histori-

cal facts, an appellate court reviews the trial court’s findings for clear

error, but whether those facts trigger or violate Fourth Amendment

protections is a question of law that an appellate court reviews indepen-

dently of the trial court’s determination.

2. Trial: Evidence: Appeal and Error. A trial court has the discretion to

determine the relevancy and admissibility of evidence, and such deter-

minations will not be disturbed on appeal unless they constitute an abuse

of that discretion.

3. Sentences: Appeal and Error. An appellate court will not disturb a

sentence imposed within statutory limits absent an abuse of discretion

by the trial court.

4. Telecommunications: Records: Warrants: Probable Cause. The gov-

ernment must generally obtain a warrant supported by probable cause

before acquiring cell site location information from a wireless carrier.

5. Constitutional Law: Search and Seizure: Evidence. The exclusion

of evidence obtained in violation of the Fourth Amendment is not a

personal constitutional right. Rather, the exclusionary rule operates as

a judicially created remedy designed to safeguard Fourth Amendment

rights generally through its deterrent effect.

6. Constitutional Law: Search and Seizure: Police Officers and

Sheriffs: Evidence. The exclusionary rule does not apply to evidence

obtained by police in objectively reasonable reliance on a statute later

found to be unconstitutional.

7. Trial: Evidence. Evidence that is irrelevant is inadmissible.

- 54 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

8. Evidence. Evidence is relevant if it has 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.

9. ____. Relevancy requires only that the probative value be something

more than nothing.

10. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403

(Reissue 2016), relevant evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice.

11. Evidence: Words and Phrases. Unfair prejudice means an undue tend­

ency to suggest a decision based on an improper basis.

12. ____: ____. Unfair prejudice speaks to the capacity of some concededly

relevant evidence to lure the fact finder into declaring guilt on a ground

different from proof specific to the offense charged, commonly on an

emotional basis.

13. Sentences: Appeal and Error. Where a sentence imposed within the

statutory limits is alleged on appeal to be excessive, the appellate court

must determine whether a sentencing court abused its discretion in con-

sidering and applying the relevant factors as well as any applicable legal

principles in determining the sentence to be imposed.

14. Sentences. In determining a sentence to be imposed, relevant factors

customarily considered and applied are the defendant’s (1) age, (2) men-

tality, (3) education and experience, (4) social and cultural background,

(5) past criminal record or record of law-abiding conduct, and (6) moti-

vation for the offense, as well as (7) the nature of the offense and (8) the

amount of violence involved in the commission of the crime.

15. ____. The appropriateness of a sentence is necessarily a subjective judg-

ment and includes the sentencing judge’s observation of the defendant’s

demeanor and attitude and all the facts and circumstances surrounding

the defendant’s life.

16. ____. Generally, it is within a trial court’s discretion to direct that

sentences imposed for separate crimes be served either concurrently or

consecutively.

Appeal from the District Court for Douglas County: James T.

Gleason, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, for

appellant.

Douglas J. Peterson, Attorney General, and Melissa R.

Vincent for appellee.

- 55 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,

Papik, and Freudenberg, JJ.

Papik, J.

Following a jury trial, Rolander L. Brown was convicted

of second degree murder and other offenses arising out of the

death of Carlos Alonzo. Brown appeals his convictions and

sentences, primarily arguing that in light of the U.S. Supreme

Court’s recent opinion in Carpenter v. U.S., ___ U.S. ___, 138

S. Ct. 2206, 201 L. Ed. 2d 507 (2018), the district court erred

by denying his motion to suppress cell site location informa-

tion. We find that the district court did not err in denying

Brown’s motion to suppress and that Brown’s other assign-

ments of error also lack merit. We affirm.

BACKGROUND

In the early morning hours of May 28, 2016, Alonzo was

found dead in the front yard of a home near 20th and Lake

Streets in Omaha, Nebraska. Alonzo died from a single gun-

shot wound to his head. The State filed several charges against

Brown arising out of Alonzo’s death: first degree murder, use

of a deadly weapon to commit a felony, and possession of a

deadly weapon by a prohibited person.

Brown’s Motion to Suppress.

As part of its investigation into Alonzo’s death, the State

submitted an application to the district court under the federal

Stored Communications Act seeking an order compelling the

disclosure of certain records pertaining to a cell phone that evi-

dence showed was used by Brown. The court granted the order,

and the State obtained the records from the relevant wireless

carrier. The records included cell site location information

(CSLI), the details of which are discussed below.

Brown moved to suppress the CSLI on the ground that the

State obtained it in violation of his Fourth Amendment rights.

The district court denied the motion to suppress.

- 56 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

Trial Evidence.

At trial, the State introduced evidence indicating that

Alonzo was shot outside the residence of Doloma Curtis. Both

Alonzo and Brown were dating Curtis at the time. Cell phone

records introduced into evidence showed that Brown was com-

municating with Curtis via text message late in the evening of

May 27, 2016, into the early morning hours of May 28. Cell

phone records also showed that Curtis did not answer several

calls from Brown after 1 a.m. The last such call was made at

2:23 a.m. CSLI from Brown’s cell phone records indicated

that Brown was in the area of 20th and Lake Streets when he

made that call.

At approximately 2:24 a.m., Omaha’s “ShotSpotter” loca-

tion system detected a single gunshot in the vicinity of Curtis’

home. Officers were dispatched to Curtis’ home. When they

arrived, they found Alonzo lying on his back on the side-

walk with a single gunshot wound to the head. During a

subsequent search of the area, officers found a single Smith

& Wesson .40-caliber shell casing in the grass not far from

Alonzo’s body.

Surveillance video from a nearby convenience store showed

a sedan, which appeared to be missing the hubcap on its front

passenger-side tire, back into a parking space near the build-

ing at 2:21 a.m. A male exited the car and headed toward

Curtis’ residence. The male ran back from the direction of

Curtis’ residence a few minutes later and drove out of the

parking lot. Evidence at trial indicated that Brown had access

to and drove a sedan that did not have a hubcap on its front

passenger-side tire.

The State also relied heavily on the testimony of Parris

Stamps. Stamps was a friend of Brown’s. At the time of

Alonzo’s death, Stamps lived near 40th and Boyd Streets with

another friend of Brown’s, James Nelson. Stamps testified that

in the early morning hours of May 28, 2016, Brown arrived

at the house where Stamps and Nelson lived. According to

Stamps, Brown told him and Nelson that he had just come

- 57 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

from Curtis’ house, that he had been in an altercation with

Alonzo, and that he “had to put [Alonzo] down.” Stamps

testified that Brown then pulled out a black Smith & Wesson

.40-caliber handgun and removed the clip, which was missing

one bullet. Stamps testified that after Brown shared this infor-

mation, the men were concerned that Brown was “hot.” Based

on this concern, they traveled to Brown’s apartment near 67th

and Grover Streets to retrieve two firearms that belonged

to Nelson.

Stamps was also allowed to testify, over Brown’s objection,

that he and his girlfriend were shot in January 2017 and that as

a result of the shooting, he was hospitalized and his girlfriend

died. Prior to this testimony, the district court instructed the

jury that there was no evidence that Brown was responsible for

this shooting and that the jury was to consider this evidence

only for the effect that it had on Stamps.

Brown’s cell phone records corroborated some elements of

Stamps’ testimony. The cell phone records showed that Brown

called Nelson at 2:25 and 2:26 a.m. They also showed that

Brown was in the area of Nelson’s residence at approximately

2:34 a.m. Brown’s cell phone records also showed that Brown

returned to his apartment near 67th and Grover Streets around

3:15 a.m.

Convictions and Sentences.

The jury found Brown guilty of second degree murder,

possession of a firearm by a prohibited person, and use of a

firearm to commit a felony. The district court sentenced Brown

to 90 to 120 years’ imprisonment for second degree murder,

3 to 50 years’ imprisonment for possession of a firearm by a

prohibited person, and 10 to 20 years’ imprisonment for use

of a firearm to commit a felony. The district court ordered the

sentence for possession of a firearm by a prohibited person to

run concurrently with the sentence for second degree murder

and the sentence for use of a firearm to commit a felony to run

consecutively to the other two sentences.

- 58 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

Brown appealed his convictions and sentences. We sub-

sequently granted his petition to bypass the Nebraska Court

of Appeals.

ASSIGNMENTS OF ERROR

Brown assigns, restated, that the district court erred (1) by

denying his motion to suppress, because the CSLI was obtained

in violation of his Fourth Amendment rights; (2) by denying

his motion to suppress, because the CSLI was obtained in

violation of the Stored Communications Act; (3) by allowing

Stamps to testify about being shot in January 2017; and (4) by

imposing excessive sentences.

STANDARD OF REVIEW

[1] When reviewing a trial court’s ruling on a motion to sup-

press based on a claimed violation of the Fourth Amendment,

an appellate court applies a two-part standard of review. State

v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018). Regarding

historical facts, an appellate court reviews the trial court’s find-

ings for clear error, but whether those facts trigger or violate

Fourth Amendment protections is a question of law that an

appellate court reviews independently of the trial court’s deter-

mination. Id.

[2] A trial court has the discretion to determine the relevancy

and admissibility of evidence, and such determinations will not

be disturbed on appeal unless they constitute an abuse of that

discretion. Lindsay Internat. Sales & Serv. v. Wegener, 301

Neb. 1, 917 N.W.2d 133 (2018).

[3] An appellate court will not disturb a sentence imposed

within statutory limits absent an abuse of discretion by the trial

court. State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).

ANALYSIS

Fourth Amendment.

Brown contends that by obtaining CSLI from his cell phone

without a warrant supported by probable cause, law enforce-

ment violated his Fourth Amendment rights. Brown argues the

- 59 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

district court thus erred by denying his motion to suppress. For

the reasons set forth below, we disagree.

CSLI is generated by cell phone providers. Individual cell

phones function by communicating with “cell sites,” radio

antennas that are mounted on towers and other structures.

See Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206, 201 L.

Ed. 2d 507 (2018). When a cell phone connects to a cell site,

a time-stamped record is produced. This record is known as

CSLI. See id. Because the cell phone will connect to the cell

site with the best signal, CSLI can be used to determine the

location of the cell phone when the connection was made. See

id. Cell phone providers collect and store CSLI for their own

purposes, but because it can be used to determine where a cell

phone was at a particular time, it can be useful to law enforce-

ment as well. See id.

In this case, law enforcement relied on the federal statute

known as the Stored Communications Act, see 18 U.S.C.

§§ 2701 to 2711 (2012 & Supp. V 2017), to request and

obtain CSLI relating to the cell phone believed to be used

by Brown. Under the Stored Communications Act, the gov-

ernment may obtain a court order that requires a cell phone

provider to disclose a customer’s records if it can demonstrate

“specific and articulable facts showing that there are reason-

able grounds to believe [the information sought is] relevant

and material to an ongoing criminal investigation.” 18 U.S.C.

§ 2703(d). Section 2703(d) does not require the government

to show probable cause. State v. Jenkins, 294 Neb. 684, 884

N.W.2d 429 (2016).

On May 31, 2016, a city of Omaha police officer submit-

ted to the district court an application requesting an order

compelling disclosure of CSLI pertaining to the cell phone

believed to be used by Brown. The district court issued an

order that same day finding that in the language of § 2703(d),

the applicant “has offered specific and articulable facts show-

ing that there are reasonable grounds to believe that the

records or other information sought are relevant and material

- 60 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

to an ongoing criminal investigation.” The order compelled

the cellular service provider to turn over the CSLI to the city

of Omaha Police Department. Brown later moved to suppress

the CSLI, contending that it was obtained in violation of his

Fourth Amendment rights.

The district court denied Brown’s suppression motion, find-

ing that the result was controlled by Jenkins, supra. Jenkins,

which was released a few months after law enforcement

obtained the CSLI in this case, held that individuals do not

have a reasonable expectation of privacy in CSLI and that thus,

the acquisition of CSLI does not implicate, let alone violate,

the Fourth Amendment.

[4] While this case was on appeal, however, the U.S.

Supreme Court concluded in Carpenter v. U.S., ___ U.S. ___,

138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018), that individuals do

have a reasonable expectation of privacy in the record of physi-

cal movements captured by CSLI. Based on this conclusion,

the Court held that “the Government must generally obtain a

warrant supported by probable cause before acquiring such

records.” Id., 138 S. Ct. at 2221.

As the State is forced to concede, our decision in Jenkins

was effectively overruled by Carpenter. And, without the ben-

efit of Jenkins, the State also concedes that the acquisition of

CSLI without a warrant supported by probable cause violated

Brown’s Fourth Amendment rights.

The fact that Brown’s Fourth Amendment rights were vio-

lated, however, does not necessarily mean that it was error

for the district court to deny Brown’s motion to suppress. See

Herring v. United States, 555 U.S. 135, 141, 129 S. Ct. 695,

172 L. Ed. 2d 496 (2009) (explaining that application of the

exclusionary rule is not “a necessary consequence of a Fourth

Amendment violation”). Indeed, the U.S. Supreme Court has

observed that the exclusionary rule is to be a “last resort” and

not a “first impulse.” Hudson v. Michigan, 547 U.S. 586, 591,

126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). We thus proceed to

the question of whether the exclusionary rule applies here.

- 61 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

[5] The exclusion of evidence obtained in violation of the

Fourth Amendment is “‘not a personal constitutional right.’”

Davis v. United States, 564 U.S. 229, 236, 131 S. Ct. 2419,

180 L. Ed. 2d 285 (2011), quoting Stone v. Powell, 428

U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). Rather,

the exclusionary rule operates as a judicially created remedy

designed to safeguard Fourth Amendment rights generally

through its deterrent effect. State v. Hoerle, 297 Neb. 840,

901 N.W.2d 327 (2017). With this purpose in mind, the U.S.

Supreme Court has recognized a number of circumstances

in which application of the exclusionary rule would not suf-

ficiently deter Fourth Amendment violations and thus the rule

does not apply. See, e.g., Davis, supra (exclusionary rule does

not apply when officers conduct search in objectively reason-

able reliance on binding appellate precedent); Herring, supra

(exclusionary rule does not apply where officers reasonably

relied on incorrect information in warrant database); United

States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d

677 (1984) (exclusionary rule does not apply when police con-

duct search in objectively reasonable reliance on warrant later

held invalid).

[6] One circumstance recognized to not trigger the exclu-

sionary rule is of particular relevance to this case. In Illinois v.

Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987),

the U.S. Supreme Court held that the exclusionary rule did not

apply to evidence obtained by police in objectively reasonable

reliance on a statute later found to be unconstitutional. As the

Court explained, unless a statute is “clearly unconstitutional,”

application of the exclusionary rule when the officer acts in

reliance on a statute would not serve the purpose of deterring

Fourth Amendment violations “[i]f the statute is subsequently

declared unconstitutional, excluding evidence obtained pur-

suant to it prior to such a judicial declaration will not deter

further Fourth Amendment violations by an officer who has

simply fulfilled his responsibility to enforce the statute as writ-

ten.” 480 U.S. at 349, 350.

- 62 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

We have previously followed Krull, declining to apply the

exclusionary rule when officers obtained evidence in reason-

able reliance on a statute later declared unconstitutional. See

Hoerle, supra.

The rationale for not applying the exclusionary rule in

Krull applies with full force here. As summarized above, law

enforcement obtained the CSLI without first securing a war-

rant supported by probable cause, but did so as authorized

by the Stored Communications Act. It cannot be said that by

doing so, law enforcement relied on a statute that was clearly

unconstitutional. At the time officers obtained the CSLI in this

case, many courts had held, as we did in State v. Jenkins, 294

Neb. 684, 884 N.W.2d 429 (2016), that CSLI did not implicate

Fourth Amendment protection. See, e.g., U.S. v. Graham, 824

F.3d 421 (4th Cir. 2016) (en banc); U.S. v. Davis, 785 F.3d

498 (11th Cir. 2015) (en banc); In re U.S. for Historical Cell

Site Data, 724 F.3d 600 (5th Cir. 2013). And, in Carpenter v.

U.S., ___ U.S. ___, 138 S. Ct. 2206, 2214, 201 L. Ed. 2d 507

(2018), while the U.S. Supreme Court ultimately reached a

contrary conclusion, it acknowledged that the question did “not

fit neatly under existing precedents.”

By obtaining the CSLI in this case under the Stored

Communications Act and without the benefit of the U.S.

Supreme Court’s not-yet-issued decision in Carpenter, officers

were merely following the statute as written. That is not the

type of police activity the exclusionary rule seeks to deter. See

Davis v. United States, 564 U.S. 229, 241, 131 S. Ct. 2419, 180

L. Ed. 2d 285 (2011), quoting Leon, supra (“the harsh sanction

of exclusion ‘should not be applied to deter objectively reason-

able law enforcement activity’”).

We are hardly the first court to conclude that CSLI obtained

under the Stored Communications Act prior to Carpenter is not

subject to exclusion. Many other courts have found the same,

and Brown has not directed us to any that concluded otherwise.

See, e.g., U.S. v. Curtis, 901 F.3d 846 (7th Cir. 2018); U.S. v.

Joyner, 899 F.3d 1199 (11th Cir. 2018); U.S. v. Chavez, 894

- 63 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

F.3d 593 (4th Cir. 2018); U.S. v. Chambers, No. 16-163-cr,

2018 WL 4523607 (2d Cir. Sept. 21, 2018).

Finally, we note that Brown’s only argument against the

application of the exclusionary rule is misplaced. Brown con-

tends that the State should not be able to argue for the first

time on appeal that an exception to the exclusionary rule

applies. Brown argues that he may have been able to intro-

duce factual evidence that would indicate law enforcement

officers did not act reasonably in this case and that thus, the

exclusionary rule should apply. Brown claims he did not place

such evidence into the record at the district court because the

State did not assert there that the exclusionary rule should

not apply even if Brown’s Fourth Amendment rights were

violated. But, in fact, the State did make such an assertion in

the district court. The State primarily argued that there was no

Fourth Amendment violation, but counsel for the State also

argued at a hearing on Brown’s motion to suppress that even

if the Fourth Amendment were violated, the exclusionary rule

should not apply, because the officers acted in good faith.

While it is not clear to us what evidence Brown could have

offered to negate the applicability of Illinois v. Krull, 480 U.S.

340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), under these

circumstances, Brown cannot point us to any such evidence,

nor can he claim that he lacked the opportunity to present it to

the district court.

For these reasons, we find that even though the acquisition

of CSLI violated Brown’s Fourth Amendment rights, the dis-

trict court did not err by denying Brown’s motion to suppress.

Stored Communications Act.

In addition to his Fourth Amendment argument, Brown

contends that the CSLI should have been suppressed for

another reason. Brown contends that the affidavit submitted

in support of the court order failed to establish reasonable

grounds to believe that the CSLI was relevant and material to

an ongoing criminal investigation, as required by the Stored

- 64 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

Communications Act. Once again, we find that Brown’s argu-

ment lacks merit.

We need not analyze the affidavit or the showing required

under the Stored Communications Act in order to dispose of

Brown’s argument. This is so because even assuming the affi-

davit failed to make the required showing under the Stored

Communications Act, it does not follow that the CSLI should

have been suppressed.

The Stored Communications Act provides a number of spe-

cific remedies for violations thereof, but suppression of evi-

dence in a criminal case is not one of them. See 18 U.S.C.

§ 2707(b) and (d). Additionally, the act provides that the

listed remedies are exclusive. 18 U.S.C. § 2708. On this basis,

many courts have found that suppression is not an available

remedy even if evidence is obtained in violation of the act.

See, e.g., U.S. v. Gasperini, 894 F.3d 482 (2d Cir. 2018); U.S.

v. Guerrero, 768 F.3d 351 (5th Cir. 2014); U.S. v. Clenney,

631 F.3d 658 (4th Cir. 2011); U.S. v. Perrine, 518 F.3d 1196

(10th Cir. 2008); U.S. v. Madison, 643 Fed. Appx. 886 (11th

Cir. 2016).

We agree that suppression is not an available remedy for a

violation of the Stored Communications Act, and we thus find

no merit to Brown’s argument that the evidence should have

been suppressed.

Stamps’ Testimony.

Brown next argues the district court erred by allowing

Stamps to testify that months before trial, he and his girlfriend

were shot, and that as a result, he suffered serious injury and

his girlfriend died. Brown argues that this evidence was irrel-

evant and that even if it were relevant, it should have been

excluded under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403

(Reissue 2016), because its probative value was outweighed

by the danger of unfair prejudice. Brown argues the district

court committed reversible error by allowing the testimony.

We disagree.

- 65 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

[7-9] Evidence that is irrelevant is inadmissible. Neb. Evid.

R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016); Lindsay

Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d

133 (2018). Evidence is relevant if it has “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.” Neb. Evid. R. 401, Neb.

Rev. Stat. § 27-401 (Reissue 2016). The bar for establishing

relevance is not a high one. Relevancy requires only that the

probative value be “‘something more than nothing.’” Lindsay

Internat. Sales & Serv., 301 Neb. at 16, 917 N.W.2d at 144.

We will not reverse a trial court’s determination regarding the

relevancy of evidence unless it constitutes an abuse of discre-

tion. See id.

Some background regarding Stamps’ cooperation in this

case is pertinent to the analysis. Stamps’ cooperation with law

enforcement in the investigation of Brown was inconsistent. It

began in July 2016 while Stamps was under arrest and being

questioned for an unrelated homicide. At that time, Stamps

offered to provide information regarding the death of Alonzo in

exchange for a bond reduction. According to Stamps, he pro-

vided some information implicating Brown in Alonzo’s death,

but not all the information he could have provided. Stamps

received a bond reduction and was released from jail.

Stamps later came to regret this act of cooperation. Stamps

attended Brown’s preliminary hearing with several of Brown’s

other friends. At the hearing, the officer to whom Stamps had

provided information implicating Brown identified Stamps as a

source of information regarding Brown’s involvement. Stamps

responded by executing an affidavit denying the statements the

officer had attributed to him and threatened to sue the officer

for defamation. Stamps testified that he signed the affidavit in

an attempt to be “loyal” to Brown.

Stamps would reverse course again, however. He testified

that on January 26, 2017, he and his girlfriend were shot as

they sat in a car, and that as a result, he was injured and his

- 66 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

girlfriend died. Stamps testified that after he was released

from the hospital, he came to law enforcement and indicated

a desire to “cooperate on everything that I knew, clear my

conscience.”

The State argued in the district court and now argues on

appeal that the fact that Stamps was shot is relevant because it

explains why he testified against Brown after initially claiming

that an officer defamed him by claiming he offered informa-

tion against Brown. According to the State, Stamps’ experience

as a victim of gun violence prompted a desire to “clear [his]

conscience” and thus was relevant to his credibility. Although

Stamps does not appear to have explicitly testified that his ulti-

mate decision to testify against Brown was influenced by being

shot, that can be fairly implied from his testimony.

We believe the district court did not abuse its discretion by

finding such testimony to be relevant. Stamps wavered between

providing partial information to law enforcement regarding

Brown’s involvement in Alonzo’s death, to denying having

provided any information at all, to providing a fuller account

of Brown’s involvement. The fact that he was shot provided

an explanation for his ultimate decision to testify, and thus the

district court did not abuse its discretion by finding it to be

relevant to his credibility.

[10-12] We also conclude that the district court did not

abuse its discretion by finding that the testimony was not

subject to exclusion under rule 403. Under rule 403, relevant

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. State v. Tucker,

301 Neb. 856, 920 N.W.2d 680 (2018). Unfair prejudice means

an undue tendency to suggest a decision based on an improper

basis. Id. It speaks to the capacity of some concededly relevant

evidence to lure the fact finder into declaring guilt on a ground

different from proof specific to the offense charged, commonly

on an emotional basis. Id.

Brown argues that even if the fact that Stamps and his girl-

friend were shot were relevant to his credibility, any relevance

- 67 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

was outweighed by the danger of unfair prejudice. Brown

argues that upon hearing the testimony that Stamps and his

girlfriend were shot, the jury would assume that Brown or his

associates were responsible. The district court, however, spe-

cifically instructed the jury that there was no evidence Brown

was involved in the shooting and that the evidence was not

being offered for this purpose. The district court’s instruction

was as follows:

[Y]ou’re going to hear some testimony on a line of ques-

tioning that relates to an event in . . . Stamps’ life. It’s

being offered for the limited [purpose] of showing the

effect that that event had on . . . Stamps. There is no evi-

dence of and there is no suggestion by the State that the

event you’re going to hear described had anything at all

to do with the defendant, . . . Brown, in any manner or in

any fashion. This is evidence that you are to hear solely

for the limited purpose . . . of the effect of this event on

the witness, . . . Stamps.

In its final jury instructions, the district court again instructed

the jury regarding evidence received for a limited purpose, stat-

ing, “During the trial, I called your attention to some evidence

that was received for a specific limited purpose. You must con-

sider that . . . evidence only for those limited purposes and for

no other reason.”

We have recently held that while a limiting instruction or an

instruction to disregard does not automatically eliminate any

risk of unfair prejudice, such an instruction can sufficiently

mitigate the risk of unfair prejudice in a particular case. See

State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). In

Rocha, we held that the district court did not abuse its discre-

tion in admitting opinion statements made by a law enforce-

ment officer in a recorded interview of the defendant. We

noted that the officer’s statements had minimal probative value

and that they “carr[ied] a special risk of unfair prejudice.” Id.

at 744, 890 N.W.2d at 201. Even so, we held that the district

court did not abuse its discretion by admitting the statements.

- 68 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

We pointed to instructions from the trial court, in which it

informed the jury that it should not consider the officer’s

statements as substantive evidence and that they should not be

given weight in determining the truthfulness of the defendant’s

statements in response. We held these instructions mitigated

the risk of unfair prejudice. Id.

For similar reasons, we reach the same conclusion here.

The district court did not allow the State to introduce evi-

dence suggesting Brown had anything to do with the shoot-

ing of Stamps and his girlfriend. And to the extent any juror

was inclined to speculate about Brown’s involvement, the

district court’s instruction informed jurors that there was “no

evidence” and “no suggestion” Brown had anything to do

with the shooting and that jurors were to consider Stamps’

testimony only for the effect the incident had on him. We

believe these instructions mitigated the risk of unfair prejudice

and thus cannot say the district court abused its discretion by

admitting the testimony.

Excessive Sentences.

Lastly, we address Brown’s claim that he received excessive

sentences. He does not dispute that the sentences imposed were

within statutory limits for his respective offenses. Rather, he

argues that the district court did not adequately account for his

difficult upbringing in fashioning his sentences.

[13-16] Where a sentence imposed within the statutory

limits is alleged on appeal to be excessive, the appellate court

must determine whether a sentencing court abused its discre-

tion in considering and applying the relevant factors as well

as any applicable legal principles in determining the sentence

to be imposed. State v. Tucker, 301 Neb. 856, 920 N.W.2d 680

(2018). Relevant factors customarily considered and applied

are the defendant’s (1) age, (2) mentality, (3) education and

experience, (4) social and cultural background, (5) past crimi-

nal record or record of law-abiding conduct, and (6) motiva-

tion for the offense, as well as (7) the nature of the offense

- 69 -

Nebraska Supreme Court A dvance Sheets

302 Nebraska R eports

STATE v. BROWN

Cite as 302 Neb. 53

and (8) the amount of violence involved in the commission of

the crime. Id. The appropriateness of a sentence is necessar-

ily a subjective judgment and includes the sentencing judge’s

observation of the defendant’s demeanor and attitude and all

the facts and circumstances surrounding the defendant’s life.

Id. And generally, it is within a trial court’s discretion to direct

that sentences imposed for separate crimes be served either

concurrently or consecutively. State v. Leahy, 301 Neb. 228,

917 N.W.2d 895 (2018).

Having reviewed the record, we cannot say that the district

court abused its discretion in sentencing Brown. The district

court stated that in sentencing Brown, it had considered,

among other things, a presentence investigation report and

a sentencing memorandum provided by Brown’s counsel.

Both the report and the sentencing memorandum provided

background on Brown’s difficult upbringing. We thus have

no reason to believe that the district court failed to consider

Brown’s upbringing along with other factors in its sentencing

calculus. Those other factors, however, would include the fact

that Brown had been previously convicted of three felonies

and was found responsible for a shooting that left a man

dead. In light of the relevant sentencing factors, we conclude

that the district court did not abuse its discretion in sentenc-

ing Brown.

CONCLUSION

We conclude that the district court did not err in denying

Brown’s motion to suppress, in admitting the testimony that

Stamps and his girlfriend were shot, or in sentencing Brown.

Consequently, we affirm.

A ffirmed.