State v. Brown

Nebraska Supreme Court Online Library

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

01/14/2022 08:10 AM CST

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BROWN

Cite as 310 Neb. 318

State of Nebraska, appellee and cross-appellant,

v. Rolander L. Brown, appellant

and cross-appellee.

___ N.W.2d ___

Filed October 22, 2021. No. S-21-112.

1. Motions for New Trial: Appeal and Error. The standard of review

for a trial court’s denial of a motion for new trial after an evidentiary

hearing is whether the trial court abused its discretion in denying

the motion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when a

trial court’s decision is based upon reasons that are untenable or unrea-

sonable, or when its action is clearly against justice, conscience, reason,

or evidence.

3. Criminal Law: Motions for New Trial: Evidence: Proof. Neb. Rev.

Stat. § 29-2101(5) (Reissue 2016) imposes on defendants a two-prong

burden of proof: First, a criminal defendant must show that the evidence

at issue has been newly discovered since trial, meaning that the evidence

could not, with reasonable diligence, have been discovered and produced

at trial; second, the defendant also must show that the evidence at issue

is so substantial that with it, a different verdict would probably have

been reached at trial.

4. Trial: Evidence: Words and Phrases. Evidence is newly discovered if

it existed at the time of trial but has since been uncovered.

5. Motions for New Trial: Evidence. When alleged newly discovered

evidence is found to lack credibility, it cannot be said that it would have

produced a substantial difference in the result had it been offered and

admitted at trial.

6. Witnesses: Appeal and Error. Appellate courts do not pass on the cred-

ibility of witnesses.

7. ____: ____. Witness credibility is a matter for the finder of fact and is

not to be reassessed on appellate review.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BROWN

Cite as 310 Neb. 318

8. Appeal and Error. An appellate court is not obligated to engage in an

analysis that is not necessary to adjudicate the case and controversy

before it.

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.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

After convictions of second degree murder, use of a firearm

to commit a felony, and possession of a firearm by a prohibited

person with sentences totaling 100 to 140 years’ imprisonment

were upheld on direct appeal, the defendant filed a motion for

new trial based on newly discovered evidence. After an eviden-

tiary hearing, the district court denied this motion for new trial.

The defendant now appeals.

BACKGROUND

Following a jury trial, Rolander L. Brown was convicted of

second degree murder, use of a firearm to commit a felony, and

possession of a firearm by a prohibited person. Brown was sen-

tenced to a total of 100 to 140 years’ imprisonment. Brown’s

convictions arose from the shooting of Carlos Alonzo on May

28, 2016. On direct appeal, this court affirmed Brown’s convic-

tions and sentences. 1 Now Brown appeals the district court’s

overruling of his motion for new trial.

1

State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BROWN

Cite as 310 Neb. 318

Evidence at Trial

A full recitation of the facts of this case can be found in our

opinion regarding Brown’s direct appeal, and we highlight only

those facts most relevant to the current appeal. In the early

morning hours of May 28, 2016, Alonzo was found dead in the

front yard of the residence of Doloma Curtis. Both Alonzo and

Brown were romantically involved with Curtis at the time.

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 at 2:22 a.m. and walked

toward Curtis’ residence, then ran back from that direction a

few minutes later and drove out of the parking lot. Shortly

after the male is seen walking toward Curtis’ front door, at

2:23 a.m., the front door of the residence opened. At 2:23 a.m.,

the male runs out of Curtis’ yard and back to his vehicle. At

2:24 a.m., the door to Curtis’ residence is opened and some-

one exits.

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

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

home. Law enforcement arrived at Curtis’ residence at 2:27 a.m.

Upon arrival, officers found Alonzo lying on his back on the

sidewalk with a single gunshot wound to the head. Evidence

indicated that Brown had access to and drove a sedan that did

not have a hubcap on its front passenger-side tire.

During the investigation, officers determined that Brown’s

phone number was the last number that called the cell phone

found in Curtis’ bedroom. Officers obtained cell phone records

from the cell phone provider for Brown’s phone number. These

records were sent to the FBI and used to track the movement

of that cell phone on the night of the homicide. These locations

indicated that Brown’s cell phone was near the location of the

homicide at approximately the time the shooting occurred.

Parris Stamps, a friend of Brown, testified at trial that

Brown arrived at the house he lived in with James Nelson in

the early morning hours of May 28, 2016. Stamps testified

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STATE v. BROWN

Cite as 310 Neb. 318

Brown told him and Nelson that he had just come 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. Brown’s

cell phone records corroborated some elements of Stamps’ tes-

timony, because the records showed that Brown called Nelson

at 2:25 and 2:26 a.m. and the cell site location information

showed that Brown was in the area of Nelson’s residence at

approximately 2:34 a.m.

Brown’s Motion for New Trial

On October 6, 2020, Brown filed a motion for new trial

based on newly discovered evidence pursuant to Neb. Rev.

Stat. § 29-2101(5) (Reissue 2016). The State filed a motion

to dismiss the motion for new trial without further hearing.

Without explicitly ruling on the motion, the district court con-

ducted a hearing as contemplated by Neb. Rev. Stat. § 29-2102

(Reissue 2016). Under § 29-2102(2), the court shall grant a

hearing on the motion and determine the issues and make

findings of fact and conclusions of law if the motion for new

trial and supporting documents set forth facts which, if true,

would materially affect the substantial rights of the defendant.

If, on the other hand, the motion for new trial and supporting

documents fail to set forth sufficient facts, under § 29-2102(2),

“the court may, on its own motion, dismiss the motion without

a hearing.”

The motion alleged and the evidence at the hearing estab-

lished that Curtis had been endorsed by the State as a witness

to be called at trial and had been interviewed by both law

enforcement and counsel for the defense. In each instance, she

relayed a similar story that she was in the bathroom and heard

Alonzo go outside to investigate some noise heard outside the

residence. She then heard a gunshot, went out the front door,

and observed Alonzo on the ground suffering from a gunshot

wound to the head. She then called the 911 emergency dis-

patch service.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BROWN

Cite as 310 Neb. 318

The motion further alleged, and the evidence at the hearing

further established, that Curtis was arrested for accessory to

murder and later signed an agreement to participate in a prof-

fer interview, but when a proffer agreement was made where

Curtis would agree to testify truthfully for the State at Brown’s

trial and in return her charges would be reduced to a Class I

misdemeanor, Curtis rejected the agreement. Brown’s trial was

set to commence on July 10, 2017, and Curtis failed to appear

pursuant to her subpoena. Brown’s trial commenced on July

12, and Curtis was apprehended in Pottawattamie County,

Iowa, on July 19. The jury returned Brown’s guilty verdicts on

July 25, and Curtis never testified at Brown’s trial.

Curtis entered a guilty plea to accessory to a felony and

was sentenced to 3 to 5 years’ imprisonment. After her release,

in the early summer of 2020, Curtis contacted the Douglas

County public defender’s office indicating she had information

regarding the homicide of Alonzo that had not been previ-

ously disclosed.

Curtis executed a sworn affidavit, attached as an exhibit

to the motion, in which Curtis stated that on the night of the

homicide, after hearing the shot, she exited her residence and

observed her brother, LeRoy Long, standing next to Alonzo’s

body, and when she asked what happened, Long replied, “‘Fuck

that Nigger.’” Curtis stated that after she reentered her house

and came back outside, she saw Brown standing in her yard,

and when she asked Brown for help, he responded, “‘Baby I

can’t,’” and ran away.

Curtis was the only one called to testify at the hearing.

She testified consistently with what she stated in the affida-

vit. Curtis testified that she was in the process of a divorce

in May 2016 and had at that time been romantically involved

with Alonzo for a little over a year and with Brown for a few

months. She testified that Alonzo was not aware she was see-

ing Brown, but that Brown knew of Alonzo. Curtis testified

that on the night of Alonzo’s death, she was in the bathroom

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STATE v. BROWN

Cite as 310 Neb. 318

and Alonzo was upstairs when she heard her dogs barking. She

heard Alonzo run downstairs and answer the door.

She testified that when she got done in the bathroom, she

went out the front door to sit on the porch and saw Alonzo

lying on the ground in blood. Curtis testified that she saw her

brother, Long, standing in the front yard by the gate with a

handgun. She testified that she asked Long what happened

and that Long replied, “‘Fuck that nigga.’” She testified that

she reached into Alonzo’s pocket to get his cell phone to call

911 and did not see where Long went. Curtis testified that

after she got the cell phone out of Alonzo’s pocket, she turned

around and saw Brown standing near the driveway. She testi-

fied that she screamed at him for help and that Brown looked

at her, shook his head, told her he could not get involved, and

ran away.

Curtis testified that she had told law enforcement she did not

know who shot Alonzo, because she was afraid for Long and

she had faith in the system that Brown would not be convicted.

She testified that she was arrested for accessory to homicide on

July 26, 2016, before Brown was arrested, and eventually went

to prison from February 2017 until September 2018. She testi-

fied that between her arrest and her sentencing, the prosecutor

offered to allow her to plead to a misdemeanor if she was will-

ing to testify in Brown’s trial. She testified that she never told

the prosecutor that she saw Long or Brown at the scene. She

testified that she was subpoenaed to appear at trial, but did not

appear, and that she was arrested as a result.

According to Curtis, after she was released in September

2018, she spoke with Long about getting the situation “figured

out,” and she testified that he “was just sitting there like — like

he didn’t hear me, like I wasn’t speaking to him.” She testified

that she also attempted to go to the police and tell them what

really happened, but that the detective she was supposed to talk

to never contacted her. Instead, Curtis prepared a handwritten

affidavit, dated March 9, 2020, that she delivered to the public

defender’s office.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BROWN

Cite as 310 Neb. 318

District Court’s Order

Denying Motion

The district court denied Brown’s motion for new trial.

The court first agreed with Brown that the alleged newly

discovered evidence was material, because it placed Long

at the scene of the crime during the relevant timeframe and

implied that Long, rather than Brown, was responsible for

Alonzo’s murder. The court further considered whether Curtis’

testimony was evidence which Brown could not have dis-

covered and produced at trial with the exercise of reasonable

diligence. The court noted that the record reflected that Curtis

was interviewed by multiple entities prior to Brown’s trial, but

never told anyone that she saw Long or Brown on the night

of Alonzo’s murder. Based on this, the fact that Curtis did

not testify in Brown’s trial, and the fact that her account was

consistent throughout the course of the police investigation,

the court found that Brown could not have, with reasonable

diligence, discovered and produced the alleged newly discov-

ered evidence at trial, nor did the record indicate that defense

counsel was aware of this evidence and made a strategic deci-

sion to withhold it.

However, the court found that Curtis’ testimony was not

credible, and after noting all the evidence introduced by the

State against Brown at trial, the court believed that even if

this alleged newly discovered evidence was placed in context

with the trial evidence, it probably would not have changed

the results of Brown’s original trial. The court noted that the

“ShotSpotter” location system, Brown’s cell phone records,

the surveillance video, and the testimony of Brown’s friend

Stamps demonstrated the strength of the State’s case. The court

supported its finding that Curtis’ testimony was not credible by

illustrating that in the several times she was interviewed prior

to Brown’s trial, she intentionally withheld material informa-

tion; during the evidentiary hearing on the motion for new

trial, Curtis admitted to lying to the police; and her testimony

reflected that she is biased toward Brown because she was

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BROWN

Cite as 310 Neb. 318

dating Brown at the time of Alonzo’s death, had made it clear

that she did not want to testify against him, and had stated she

loved Brown before trial and still loves him.

So, while the court was satisfied that the alleged newly dis-

covered evidence could not have been presented by Brown’s

counsel at the time of trial, the court found that the evidence

lacked the requisite degree of credibility and competency to

warrant a new trial. In light of its finding that Curtis was not

credible, the court was not satisfied that the evidence was of

such a substantial nature that had it been received at Brown’s

trial, it would have changed the result.

Brown appeals the district court’s denial of his motion for

new trial. The State cross-appeals.

ASSIGNMENTS OF ERROR

Brown assigns that the trial court abused its discretion by

denying his motion for new trial based on newly discovered

evidence.

The State also filed a cross-appeal, assigning that the district

court erred in (1) denying the State’s motion to dismiss on the

ground that Curtis’ affidavit did not identify any newly discov-

ered evidence and (2) finding that Curtis’ testimony was newly

discovered based on the evidence presented at the hearing.

STANDARD OF REVIEW

[1,2] The standard of review for a trial court’s denial of a

motion for new trial after an evidentiary hearing is whether

the trial court abused its discretion in denying the motion. 2

An abuse of discretion occurs when a trial court’s decision

is based upon reasons that are untenable or unreasonable, or

when its action is clearly against justice, conscience, reason,

or evidence. 3

2

State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).

3

Id.

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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BROWN

Cite as 310 Neb. 318

ANALYSIS

Section 29-2101 sets out the seven grounds on which a

motion for new trial may be based. At issue in this appeal is

§ 29-2101(5). Under § 29-2101,

[a] new trial, after a verdict of conviction, may be

granted, on the application of the defendant, for any of

the following grounds affecting materially his or her

substantial rights: . . . (5) newly discovered evidence

material for the defendant which he or she could not with

reasonable diligence have discovered and produced at the

trial . . . .

[3] In our opinions interpreting § 29-2101(5), we have found

it to impose on defendants a two-prong burden of proof: First,

a criminal defendant must show that the evidence at issue has

been newly discovered since trial, meaning that the evidence

could not, with reasonable diligence, have been discovered and

produced at trial. 4 Second, the defendant also must show that

the evidence at issue is so substantial that with it, a different

verdict would probably have been reached at trial. 5

[4] With regard to the first prong, we have said that whereas

an object is new at the moment that it begins to exist, it is

newly discovered once it is revealed or found out to have

previously been in existence. 6 Evidence is newly discovered

if it existed at the time of trial but has since been uncovered. 7

Because the evidence must have existed at trial for it to be

uncovered after the trial, evidence newly created after trial

does not satisfy § 29-2101(5). 8 In any but a very extraordinary

case in which an utter failure of justice will unequivocally

result, a verdict on the evidence at the trial will not be set

4

Id.

5

Id.

6

Id.

7

See id.

8

See id.

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STATE v. BROWN

Cite as 310 Neb. 318

aside and a new trial granted on the basis of evidence of facts

occurring subsequent to such trial. 9

[5] With regard to the second prong, we have explained that

“materiality” refers to newly discovered evidence that is so

potent that by strengthening evidence already offered, a new

trial would probably result in a different verdict. 10 However,

the newly discovered evidence must be competent and credi-

ble. 11 When alleged newly discovered evidence is found to

lack credibility, it cannot be said that it would have produced

a substantial difference in the result had it been offered and

admitted at trial. 12

The district court found that the version of events described

by Curtis at the motion for new trial hearing could not have

been discovered with reasonable diligence, given the consist­

ency of Curtis’ statements during police interviews and in

conversations with the public defender that she did not see

Brown the day Alonzo was murdered and did not know who

had shot him. The district court found that Curtis’ testimony

at the hearing on the motion for new trial, if credible, was

material, because it placed Long at the scene of the crime such

that it implies Long, rather than Brown, was responsible for

Alonzo’s murder.

But the court ultimately found that the newly discovered

­testimony would not have produced a substantial difference in

the result had it been offered and admitted at trial, because it

was not credible. The court found that Curtis’ testimony as to

this new version of events lacked the requisite degree of cred-

ibility and competency necessary to warrant a new trial.

9

Id.

10

State v. McCormick, 246 Neb. 271, 518 N.W.2d 133 (1994), abrogated on

other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

11

See, State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977); State v. Seger,

191 Neb. 760, 217 N.W.2d 828 (1974).

12

See State v. Rosales, 3 Neb. App. 26, 521 N.W.2d 385 (1994).

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STATE v. BROWN

Cite as 310 Neb. 318

We cannot say this was erroneous. The district court took

into account, among other things, Curtis’ bias toward Brown,

Stamps’ testimony that Brown had said he “had to put [Alonzo]

down,” and the surveillance video. We note that the video

shows the door to Curtis’ residence opened shortly after a male

exited a vehicle with a missing hubcap on the front passenger-

side tire and walked toward Curtis’ residence. A couple of

minutes after the door opened at Curtis’ residence, a male ran

back to the vehicle from the direction of Curtis’ residence and

drove away. Only after the vehicle drove away did the door

to Curtis’ residence open for a second time and an individual

walked out, presumably Curtis discovering Alonzo’s body in

the front yard.

[6,7] Appellate courts do not pass on the credibility of wit-

nesses. 13 Witness credibility is a matter for the finder of fact

and is not to be reassessed on appellate review. 14 The district

court did not abuse its discretion in denying Brown’s motion

for new trial on the ground that Curtis’ new eyewitness account

lacked credibility. We accordingly affirm the district court’s

order denying Brown’s motion for new trial.

[8] Given our disposition, we do not address the State’s

cross-appeal. An appellate court is not obligated to engage

in an analysis that is not necessary to adjudicate the case and

controversy before it. 15

CONCLUSION

For the foregoing reasons, we affirm the district court’s

order denying Brown’s motion for new trial.

Affirmed.

13

See State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).

14

See, State v. Wheeler, 308 Neb. 708, 956 N.W.2d 708 (2021); State v.

Faust, 269 Neb. 749, 696 N.W.2d 420 (2005).

15

Preserve the Sandhills v. Cherry County, ante p. 184, ___ N.W.2d ___

(2021).