A-21-640, State v. Sidney a criminal case, to be argued 9/15/2022 at Midland University.
Jamare S. Sidney appeals from his jury conviction of possession of a firearm by a prohibited person and his sentence of 10 to 15 years’ imprisonment. Sidney contends that the district court abused its discretion in denying his motion for a new trial based on newly discovered evidence, that the sentence imposed was excessive, and that his trial counsel was ineffective in various ways.
The evidence at trial showed that Lincoln police officers were investigating a disturbance in front of a downtown Lincoln bar when they heard another disturbance coming from a nearby parking garage. Upon entering the garage, an officer identified a black male in a red sweatshirt (Sidney) standing next to a white female (Mathews) and two black males (Griffin and Jones). Sidney removed a rifle from the trunk of the vehicle and was observed holding the rife toward the ground. The officer retreated to call for backup and when he and a fellow officer began walking up the ramp into the parking garage, a shot was fired. Both officers identified Sidney as the person holding the rifle. Despite commands to freeze, Sidney got into the vehicle with Matthews and Griffin and fled the scene. Jones was detained at the scene. Law enforcement stopped the fleeing vehicle and completed a search of the vehicle locating a rifle, a rifle magazine, and ammunition. A bullet casing was found in the parking garage that matched the ammunition found in the vehicle. When questioned Matthews identified Sidney as the shooter.
At trial, Sidney argued that he was not holding the rifle, nor did he fire it. Rather, he asserted that Jones fired the weapon at an individual he had issues with, and Matthews covered for Jones because they were romantically involved. The jury convicted Sidney. Thereafter, he filed a motion for a new trial based on newly discovered evidence. He asserted that Matthews denied being in a relationship with Jones during her deposition testimony and at trial, although she did acknowledge seeing him prior to giving her deposition and before trial. Sidney stated that Matthews was not truthful and that she was pregnant with Jones’ child giving her motivation to lie about who was holding the rifle. Additionally, Jones, who was not present for the trial could now be subpoenaed and would testify that Sidney was not the one holding the rifle. Further, Sidney argued that additional information had come to light about bias by one of the investigating officers that also raised doubt about him possessing the rifle. The district court denied the motion for a new trial stating that the evidence was not newly discovered. Sidney was subsequently sentenced to 10 to 15 years’ incarceration. Sidney appealed alleging that it was an error to deny his motion for a new trial, that his sentence was excessive, and that his trial counsel was ineffective.
“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.” Neb. Rev. Stat. § 29-2101.
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. State v. Brown, 310 Neb. 318, 326–27, 965 N.W.2d 388, 394–95 (2021).
Sidney also argues that his sentence was excessive. Sidney was convicted of a Class ID felony and was sentenced to 10 to 15 years’ imprisonment. Class ID felonies are punishable by a mandatory minimum of 3 years’ imprisonment and a maximum of 50 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020).
When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles. State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).
Lastly, Sidney argues he received ineffective assistance of trial counsel because (a) communicate and meet with him, adequately review discovery materials with him, investigate his defenses, and prepare for trial; (b) depose the State’s witnesses, including Jones and Officers Moore and Sullivan, to contrast the discrepancies of the descriptions of the suspects in the police reports; (c) file a motion for independent testing of the DNA swabs taken from the rifle and ammunition seized by police in order to show that Sidney’s DNA was not on the rifle and that Sidney did not possess the firearm as suggested by the State; (d) consult, engage, retain, or file a motion for examination of the rifle, to obtain a fingerprint expert to examine the rifle and to provide testimony in support of Sidney’s theory that the seized rifle and ammunition were sufficient surfaces to retain fingerprints, and to prove that he could not have touched the rifle, and (e) object to the State’s motion in limine with respect to the witness that was the subject of the Giglio disclosure as the bias, prejudice, or ulterior motive of the witness was relevant for the jury to evaluate credibility of that witness and was material to Sidney’s right to confrontation.
Once raised, an appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. The record is sufficient if it establishes either that trial counsel's performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counsel's actions could not be justified as a part of any plausible trial strategy. Conversely, an ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing. State v. Drake, 311 Neb. 219, 236-37, 971 N.W.2d 759, 774 (2022).