S-25-0165 State of Nebraska (Appellee) v. Wilbert C. Smith (Appellant)
Appeal from the District Court for Douglas County, Judge Derek R. Vaughn
Attorneys: Leslie E. Cavanaugh (Asst. Douglas County Public Defender for Appellant) and Nathan A. Liss (Asst. Attorney General for Appellee)
Criminal: Life imprisonment for first-degree murder
Proceedings Below: A jury convicted Appellant of first-degree murder, and he was sentenced to life imprisonment. Life imprisonment cases are direct appeals to the Supreme Court.
Issues: Appellant assigns the following errors: 1) The trial court erred when it allowed testimony regarding Appellant’s gang affiliation and opinion testimony of officers about how the alleged actions of Appellant were in conformity with what was deemed to be gang-like behavior; 2) Trial counsel was constitutionally ineffective for failing to renew his objection to the admission of gang affiliation evidence and for allowing the State to present prejudicial, unfounded testimony regarding “gang behavior;” 3) Appellant received ineffective assistance of counsel at trial because his counsel failed to file pretrial motions on the admission of Shannon Wynne’s texts to Appellant because the texts were hearsay, more prejudicial than probative, and not relevant, and failed to object to the admission of the text messages and the mischaracterization of them at trial; 4) Appellant received ineffective assistance of counsel at trial because his counsel failed to object to the testimony of Sergeant Preston as to Preston’s theory of the case; 5) Appellant received ineffective assistance of counsel at trial because his counsel stipulated to Snapchat data, failed to object to the introduction of the Snapchat data, and failed to object to Morris’ claim that he could use geolocation association with the Snapchat account to pinpoint Appellant’s location; 6) Appellant’s trial counsel was ineffective when he failed to object to Morris’ opinion of what Appellant and his passengers were doing when the blue SUV encountered the Bass vehicle, because Morris’ testimony was irrelevant, without foundation, and more prejudicial than probative; 7) Trial counsel was ineffective because he failed to object to Morris’ opinion testimony about why someone would visit the Facebook site “Mean Streets,” because it was without foundation, irrelevant, and was more prejudicial than probative; 8) Appellant received ineffective assistance of counsel at trial when counsel failed to request a continuance, failed to deposition, and failed to obtain an expert to challenge Houpt’s final report; 9) Trial counsel failed to challenge the absence of gunshot residue on items unlinked to Appellant or raise the persistence timeline of gunshot residue; 10) Appellant received ineffective assistance of counsel at trial because the cumulative effective of counsel’s errors and failures amounted to deprivation of a fair trial by an impartial jury; and 11) The district court erred in finding sufficient evidence to warrant a conviction beyond a reasonable doubt as the evidence failed to establish that Appellant aided and abetted by driving the blue SUV during the shooting of Bass.