STATE OF NEBRASKA V. KARNELL D. BURTON

Lincoln, NE - Criminal defense attorney represented Karnell D. Burton with appealing from the Douglas County District Court's denial of his motion for new trial based on newly discovered evidence..

The facts in the instant case were summarized in Burton's direct appeal to the Nebraska

Supreme Court in State v. Burton, 282 Neb. 135, 137-38, 802 N.W.2d 127, 130-31 (2011), as

follows:

This case arises out of the shootings of Timothy Thomas and his cousin Marshall

Turner, which left Thomas dead and Turner seriously wounded. Generally, the State

accused Burton and his alleged accomplice, Thunder Collins, of shooting Thomas and

Turner in an attempt to steal cocaine from them. In connection with those shootings, Burton- 2 -

was charged with first degree murder, attempted second degree murder, first degree assault,

and three counts of use of a deadly weapon to commit a felony.

The State's evidence at trial, taken in the light most favorable to the State,

established that Collins, Turner, and Thomas had been engaged in transporting cocaine

from Los Angeles, California, to sell in Omaha, Nebraska. On the trip that culminated in

the shootings at issue in this case, Turner and Thomas had driven to Omaha from California

in a sports utility vehicle (SUV), accompanied by Turner's girlfriend and another man,

Darryl Reed. The cocaine they were transporting had been hidden in the body of the SUV.

Collins contacted his friend Ahmad Johnson, who testified at trial that Collins asked

him to help Collins "get these guys.” Collins told Johnson that they needed a secure

location to get the drugs out of the SUV. Johnson asked his friend Karl Patterson whether

they could use Patterson's automotive repair shop. Patterson refused, but, according to

Johnson, agreed to give Collins a gun. Collins and Johnson then tried to contact Burton,

but failed. So, Collins told Turner and Thomas to follow Collins in their SUV to Johnson's

house, to use Johnson's garage to remove the drugs from the SUV.

Burton called Collins back, and Collins told him to come to Johnson's house, so he

did. Johnson took the gun that they had gotten from Patterson and placed it in the kitchen.

Burton and Johnson were in the house talking when Collins came in and asked for a gun

Burton had brought with him, which was smaller. Johnson said he told Burton to "watch

[Collins'] back,” then went outside and sat in his car, listening to music.

Turner and Thomas were still in the garage, and Turner was watching Thomas work

to remove the drugs from the SUV, when Turner was suddenly shot in the neck. Turner fell

to the ground and crawled under the SUV. When he got up, he saw Burton pointing a gun

at him and Collins holding Thomas by the hair. Turner tried to get between Collins and

Thomas, so Burton shot Turner in the buttocks. Collins then shot Thomas in the head.

Burton went to help Collins move Thomas' body, and Turner heard Burton say, "Let me

make sure this nigger dead.” Another shot was fired, grazing Turner's head. Turner heard

Collins and Burton go out the back door of the garage, so he got into the SUV, drove it

through the closed garage door, and fled.

The court further found:

Burton had been taken into police custody at the scene of the crime and gave a

statement to police that was not admitted into evidence at trial. But, when Burton testified

at trial, his statement was used as the basis for impeachment on cross-examination.

Turner and Johnson testified at trial, and their accounts of events are essentially set

forth above--that Turner and Thomas were in the garage at Johnson's house when Collins

and Burton came into the garage and attacked them. Specifically, Turner said that Collins

shot him, then Burton shot at him two more times, while Collins killed Thomas.

Burton gave a different account. Burton testified at trial that he and Johnson had

both been in the kitchen at Johnson's house, when they heard a scuffle in the garage and

the sound of a gunshot. Burton said that he grabbed a gun off the stove and that he and

Johnson both ran into the garage. According to Burton, he shot Turner in the buttocks

because Collins, fighting with Turner and Thomas, had said that Turner had a gun. Burton - 3 -

said that after he shot Turner in the buttocks, Collins took the gun from him and Burton

left the garage. Burton said he did not know whether Johnson also left the garage. Then,

Burton heard more gunshots, and was leaving when he saw the SUV crash through the

garage door and speed away.

But on cross-examination, Burton admitted initially telling police that neither he

nor Johnson had been in the garage at all. Then, eventually, Burton had admitted to police

that he had shot Turner. Specifically, Burton did not deny telling police that he and Johnson

had been in the garage watching the removal of the drugs, then gone into the kitchen, where

he had been given a gun to take back into the garage. Burton admitted telling police,

contrary to his trial testimony, that he and Collins had been in the garage, but not Johnson.

Nor did Burton deny telling police that, contrary to his trial testimony, he had been present

when Collins shot Turner and Thomas and that Collins had shot both men before Burton

shot Turner.

Id. at 141-42, 802 N.W.2d at 133-34.

Burton was convicted of manslaughter, attempted second degree murder, first degree

assault, and two counts of use of a deadly weapon to commit a felony. He was sentenced to a total

of 80 to 130 years in prison. The Nebraska Supreme Court affirmed Burton's convictions and

sentences on direct appeal.

POSTCONVICTION AND FEDERAL HABEAS

In 2012, Burton filed a motion for postconviction relief. The district court denied Burton's

motion for postconviction relief without an evidentiary hearing, and this court affirmed. See State

v. Burton, No. A-14-584, 2015 WL 3955485 (Neb. App. June 30, 2015) (selected for posting to

court website). Burton's petition for further review was denied by the Nebraska Supreme Court on

September 10, 2015.

In November 2015, Burton filed a federal petition for the writ of habeas corpus under 28

U.S.C. § 2254, but his petition was denied. See Burton v. Frakes, No. 8:15CV417, 2017 WL

1048060 (D. Neb. Mar. 17, 2017).

Neither Burton's motion for postconviction relief nor his federal petition for writ of habeas

corpus involved issues relevant to this current appeal.

MOTION FOR NEW TRIAL

On October 10, 2019, Burton filed a pro se motion for new trial pursuant to Neb. Rev. Stat.

§ 29-2101 (Reissue 2016). Burton alleged, in relevant part, that his trial counsel informed him that

he had contacted Collins but was unsuccessful in getting him to testify at Burton's trial. Burton

further alleged that he later discovered that trial counsel never spoke with Collins; if he had spoken

with or interviewed Collins, counsel would have learned that Collins would have testified at

Burton's trial that Burton "saved his life that day.” Burton alleged that Collins' testimony would

have corroborated both Burton and the victim's testimony that Burton only shot the victim when

the victim and Collins were fighting over the gun; this would have supported Burton's

"self-defense of others theory.” Burton also alleged that during the jurors' deliberation, "they asked

one question 'can you define self defense of others,'” and the judge "told the jurors they had to go - 4 -

with what they got in the jury instructions”; if Collins had testified, the jurors' verdict may have

been different.

Attached to and referenced in Burton's motion for new trial was an affidavit from Collins,

dated August 29, 2019. The affidavit stated, "On September 23, 2008 Burton saved my life. I was

never contacted, interviewed, nor called as a witness to testify at Karnell Burton's trial by his

lawyer.” Also attached to Burton's motion was a letter from Collins dated August 29, 2019. The

letter appears to be written to Burton's sister and stated that Collins had been trying to contact

Burton, but the prison would not allow it; Collins further stated that Burton's lawyer never

contacted him for an interview or called him to testify at Burton's trial, but that Collins wanted to

testify "about how he saved my life.” Additionally, there is a letter dated September 2, 2019, which

appears to be written to Burton from his sister and which passes the information from Collins'

August 29 letter on to Burton. Finally, there is an affidavit from Burton dated September 10, 2019,

stating that he was told by his trial attorney during the pretrial stage of the case that counsel reached

out to Collins to be a witness, that Burton just learned that his attorney never contacted Collins,

and that Burton had no previous knowledge that Collins wanted to testify because Burton and

Collins have "been put on a no communication restriction with each other since the day of

[Burton's arrest]” in September 2008.

Various other motions were filed by Burton in October, November, and December 2019.

In an order entered on December 12, 2019, the district court ruled on these motions, but the court

did not address Burton's motion for new trial. Burton filed a motion to alter or amend. In a letter

filed on January 17, 2020, the district court stated that it "takes no action as there is nothing

pending” in Burton's case, and that the case was dismissed on "December 10 [sic] [2019].” Burton

appealed to this court in case No. A-20-080; on February 24, 2020, we dismissed the appeal for

lack of jurisdiction because the district court had not yet ruled on all pending motions.

On March 5, 2020, Burton filed a pro se motion for new trial based on newly discovered

evidence pursuant to § 29-2101(5). Burton alleged that he received a letter and affidavit from

Collins on or around September 5, 2019, stating that Collins was never contacted for an interview

or called as a witness on Burton's behalf and that Collins wanted to testify at Burton's trial as to

how Burton saved Collins' life; Collins' letter and affidavit were attached to the motion. Burton

also alleged that he spoke with his trial counsel regarding Collins' letter and affidavit and that

counsel stated, "'[I] did have a bunch of other trials pending and [I] must have just forgot to get in

touch with [C]ollins.'” Trial counsel's affidavit dated February 25, 2020, was attached to Burton's

motion and stated, "[D]uring trial preparation the affiant [trial counsel] made no attempts to

interview or depose Thunder Collins, who at all times was represented by counsel.” Burton alleged

that he had been told by trial counsel at the pretrial stages that counsel had reached out to Collins

for an interview and to get Collins to testify on Burton's behalf, and that until recently, Burton had

no way of knowing that Collins wanted to testify or that trial counsel never contacted Collins

because Burton and Collins "had been placed on a [n]o contact or communication order by the

arresting officers” and by the Nebraska Department of Correctional Services.

Burton filed various other motions in March and April 2020.

On April 8, 2020, the district court entered a written order denying Burton's October 10,

2019, and March 5, 2020, motions for new trial. As relevant, the court stated that only § 29-2101(5)

(newly discovered evidence) was potentially applicable to any of Burton's claims. However, the - 5 -

court found that Burton failed to show that the evidence could not with reasonable diligence have

been discovered and produced at trial. The court stated that Burton was aware that Collins was a

potential witness during trial and any alleged deficiency by trial counsel on the matter could have

been discovered and resolved during Burton's first request for postconviction relief. The court

continued, "Burton's attached letter and affidavits indicate that his claims are based on newly

available evidence of the error rather than newly discovered evidence.” The court determined that

Burton's motion for new trial was untimely and denied the motion without an evidentiary hearing.

The district court's order also disposed of all other outstanding motions.

Burton appeals.

ASSIGNMENT OF ERROR

Burton assigns, restated, that the district court erred when it denied his motion for new trial

based on newly discovered evidence.

STANDARD OF REVIEW

A de novo standard of review applies when an appellate court is reviewing a trial court's

dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2) (Reissue 2016) without

conducting an evidentiary hearing. State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).

ANALYSIS

In criminal cases, motions for new trial are governed by §§ 29-2101, 29-2102, and 29-2103

(Reissue 2016). The Nebraska Supreme Court explained the statutory framework in State v. Cross,

supra.

Section 29-2101 sets out the seven grounds on which a motion for new trial may be based;

only § 29-2101(5) is relevant to this case. Pursuant to that subsection, a new trial may be granted

based on "newly discovered evidence material for the defendant which he or she could not with

reasonable diligence have discovered and produced at the trial.” § 29-2101(5). A new trial may be

granted only if the ground materially affects the defendant's substantial rights. See, § 29-2101;

State v. Cross, supra. See, also, § 29-2103(4) (motion for new trial alleging newly discovered

evidence must be filed within reasonable time after discovery of new evidence and cannot be filed

more than 5 years after date of verdict, unless motion and supporting documents show new

evidence could not with reasonable diligence have been discovered and produced at trial and such

evidence so substantial that different result may have occurred). Burton's motion for new trial was

filed more than 5 years after the date of the verdict.

The Nebraska Supreme Court has defined newly discovered evidence as evidence which

neither the litigant nor counsel could have discovered by the exercise of reasonable diligence. See

State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011) (emphasis supplied). The evidence must

also be more than merely cumulative; it must be competent, relevant, and material, and of such

character as to reasonably justify a belief that its admission would bring about a different result if

a new trial were granted. Id.

In the instant case, Collins' testimony does not qualify as "newly discovered evidence.”

Even though Burton alleged he did not have personal knowledge of Collins' willingness to testify

on his behalf (because of the no contact order), Burton's trial counsel, with "reasonable diligence,”- 6 -

could have contacted Collins and learned of his desire to testify. See State v. Timmens, supra.

Furthermore, as noted by the State:

Even if Burton was not aware until 2019 that Collins allegedly wanted to testify at Burton's

trial, the substance of Collins' testimony has always been known by Burton given that he

and Collins were the only two people in the garage with the victims at the time Turner was

shot and Thomas was murdered. Thus, Burton has not alleged "new evidence” warranting

a new trial.

Brief for appellee at 9. See, generally, State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002)

(substance of codefendant's testimony not new evidence if it was always known by defendant

seeking new trial; codefendant's testimony not newly discovered evidence, but only newly

available evidence which does not provide basis for granting new trial).

In any event, Collins' testimony would have been merely cumulative, as reflected in

Burton's own motion for new trial. In his motion for new trial filed on October 10, 2019, Burton

alleged that Collins' testimony would have corroborated both Burton and the victim's testimony

that Burton only shot the victim when the victim and Collins were fighting over the gun, and this

would have supported Burton's "self-defense of others theory.”

At trial, the jury was instructed as to the material elements the State was required to prove

for each of the six charged offenses; for each charge, one of the elements the State was required to

prove beyond a reasonable doubt was that "[t]he Defendant [Burton] did not act in defense of

Thunder Collins.” The jury was also given the following instruction:

INSTRUCTION NO. 11

The Defendant Karnell Burton acted in defense of Thunder Collins if:

1. The Defendant reasonably believed that Timothy Thomas and/or Marshall

Turner threatened, attempted or caused death or serious bodily harm to Thunder Collins;

and

2. The Defendant did not provoke any such threat or use of force by Timothy

Thomas and/or Marshall Turner against Thunder Collins with the intent of using deadly

force in response; and

3. Under the circumstances as they existed at the time, the Defendant reasonably

believed that his use of deadly force was immediately necessary to protect Thunder Collins

against any such force used or threatened by Timothy Thomas and/or Marshall Turner.

The fact that the Defendant may have been wrong in estimating the danger to

Thunder Collins does not matter so long as there was a reasonable basis for what the

Defendant believed and he acted reasonably in response to that belief.

The jury later submitted a written request asking the trial court to "Please define 'defense of'” for

instruction No. 11. In response, the trial court issued a supplemental instruction to the jury stating,

"You have received all the evidence you will receive during the trial. You should continue your

deliberations by reviewing the evidence, the arguments of counsel and the jury instructions.”

Contrary to Burton's assertion, the fact that the jury requested clarification of the defense

of others instruction is irrelevant to the issue in this current appeal. Burton's own motion states

that Collins' testimony would have corroborated both Burton's and the victim's testimony. - 7 -

Therefore, not only was Collins' testimony cumulative, it was not of such character as to

reasonably justify a belief that its admission would bring about a different result if a new trial were

granted. See State v. Timmens, supra.

Because Burton filed his motion for new trial more than 5 years after the date of his verdict,

and failed to show new evidence that could not, with reasonable diligence, have been discovered

and produced at trial, the district court properly dismissed the motion for new trial without a

hearing. See § 29-2102(2) ("[i]f the motion for new trial and supporting documents fail to set forth

sufficient facts, the court may, on its own motion, dismiss the motion without a hearing”).

For the reasons stated above, we affirm the district court’s decision to deny Burton’s motion for new trial.