State v. Goynes

We conclude that the sentence imposed by the district court
was not excessive and did not constitute cruel and unusual
punishment.
CONCLUSION
We conclude that the evidence was sufficient to support
Robinson’s conviction for knowing or intentional child abuse
resulting in death, that the record on direct appeal is not suf-
ficient to review Robinson’s claim of ineffective assistance of
counsel, that Robinson was not prejudiced by the supplemental
instruction to the jury, and that the sentence imposed by the
district court was not excessive and did not constitute cruel and
unusual punishment. We therefore affirm Robinson’s convic-
tion and sentence.
A ffirmed.
StAte of NebrASkA, Appellee , v.
dAuNte l. G oyNeS, AppellANt.
768 N.W.2d 458
Filed July 31, 2009. 	No. S-08-810.
1. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
2. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion
for mistrial is within the discretion of the trial court, and an appellate court will
not disturb the ruling on appeal in the absence of an abuse of discretion.
3. Self-Defense. To successfully assert a claim of self-defense as justification for
the use of force, the defendant must have a reasonable and good faith belief in
the necessity of such force and the force used must be immediately necessary and
must be justified under the circumstances.
4. Motions for Mistrial. The decision to grant a motion for mistrial is within the
trial court’s discretion.
5. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.
6. Prosecuting Attorneys. When a prosecutor persists in questioning after the court
advises that the questions are not permitted, the prosecutor commits misconduct.
7. Prosecuting Attorneys: Motions for Mistrial. A prosecutor’s conduct does not
require a mistrial if it does not mislead or unduly influence the jury.
230 	278 NEBRASkA REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

8. ____: ____. When a prosecutor’s conduct is so inflammatory that an admonition
to the jury cannot remove the contamination, a mistrial is warranted.
Appeal from the District Court for Douglas County: SANdrA
l. douGherty, Judge. Affirmed.
Thomas C. Riley, Douglas County public Defender, for
appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heAvicAN, 	c.J., 	WriGht, 	coNNolly, 	G errArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
coNNolly, J.
I. SUmmARy
A jury convicted the appellant, Daunte L. Goynes, of murder
in the second degree and use of a deadly weapon to commit a
felony. The district court sentenced him to a term of 60 years’
to life imprisonment for the murder conviction and a consecu-
tive term of 10 to 20 years’ imprisonment for the weapon con-
viction. He appeals the district court’s exclusion of purported
threats made against him by the victim’s fellow gang members.
He also appeals the court’s denial of his motion for a mistrial
for prosecutorial misconduct. We affirm.
II. BACkGROUND
1. the ShootiNG
The State charged 18-year-old Goynes with second degree
murder and use of a deadly weapon to commit a felony.
Goynes 	admitted 	shooting 	18-year-old 	Aaron 	Lofton 	but
claimed self-defense.
The shooting occurred during a fight between Lofton and
Goynes near 40th and Hamilton Streets in Omaha, Nebraska.
Lofton and his mother were walking on Hamilton Street about
1 o’clock in the afternoon. Lofton’s mother testified that as
they walked past Goynes and another male, Lofton turned and
punched Goynes in the face and a fight ensued. Lofton’s mother
ran to a nearby store for help. When she exited the store, she
heard several shots. She did not see the first shot but claimed
STATE v. GOyNES 	231
Cite as 278 Neb. 230

that she saw Goynes standing in the middle of the street, firing
at Lofton as he ran away from Goynes.
Another witness, a cabdriver, was driving west on Hamilton
Street when the shooting occurred. He testified that he saw a
fight between two young black males. He saw Lofton throw
the first punch and, as the fight escalated, heard shots. He did
not see the first shot, but testified that he saw Lofton running
away. As Lofton continued running, the cabdriver saw Goynes
leaning over a parked car, firing with his hand extended across
the hood. Lofton later died at a hospital.
Goynes and the other male fled from the scene. The cab-
driver followed them to a house a few blocks away, where
police arrested Goynes. At the house, the police found a .38-
caliber revolver. The gun, a five-shot revolver, had one empty
cell and four spent casings in the other cells. Ballistics tests
later confirmed that the fatal bullet was fired from the gun. An
autopsy determined that a single shot entered Lofton’s left side
under his armpit and travelled left to right at a slight upward
angle. The autopsy also showed the bullet lodged in the right
side of Lofton’s upper chest area. The parties stipulated that
Goynes fired the shot from a distance of at least 12 inches.
Goynes testified that he did not seek out Lofton on the day
of the shooting, but that Goynes recognized him as a member
of the “murdertown” gang. Goynes also testified that he was
losing the fight with Lofton; that Lofton had him in a headlock;
and that because Goynes suffers from asthma, the exertion and
pressure were making it difficult for him to breathe. He began
to panic and reached for the gun hidden in his pants. Goynes
testified that he believed the only way to get free from Lofton
was to shoot him. He testified that he fired several shots while
he was on the ground but never shot at Lofton once he was free
from him.
Goynes said that the fight was part of an ongoing dispute
between himself and members of the murdertown gang. He
stated that a month before the shooting, Lofton shot at him
and several friends while they were in kountze park in Omaha,
and that later that same night at a local fast-food restaurant, a
murdertown gang member was murdered. Goynes testified that
he was not responsible for the death but that he began carrying
232 	278 NEBRASkA REpORTS

a gun because the murdertown gang members blamed him for
the shooting. He believed that his fight with Lofton resulted
from the murdertown gang’s belief that he was involved in the
fast-food restaurant shooting.
2. the triAl
(a) Evidence of Alleged
Third-party Threats
During the trial, Goynes argued that he shot Lofton in
self-defense. To establish that defense, Goynes attempted to
introduce evidence of threats made against him by Lofton’s
fellow gang members. The court excluded this evidence. The
first incident Goynes proffered as evidence involved a driveby
shooting at Goynes’ mother’s residence allegedly committed by
murdertown gang members. The second incident involved an
alleged threat made by the murdertown gang on the “mySpace”
Web page, an online social networking site. Goynes argued that
the threats showed he reasonably feared Lofton because Lofton
was a member of the murdertown gang.
Regarding 	the 	first 	incident, 	the 	district 	court 	allowed
Goynes to testify that after the fast-food restaurant murder,
he saw a car drive by his mother’s house and he believed a
murdertown gang member owned it. But the court did not
allow him to testify that someone fired shots from the car at
his mother’s house. The court ruled that unless Goynes could
testify that Lofton was in the car, he could not testify about the
shots’ being fired from the car. In an offer of proof, Goynes
argued that a jury could find—because of the firing of shots
at his mother’s house by murdertown gang members—that he
reasonably feared he would be killed or seriously injured by a
murdertown gang member.
Regarding the second incident, the court did not allow
Goynes to introduce testimony regarding an alleged threat
against Goynes and his family on murdertown’s Web page
on “mySpace.” In his offer of proof, Goynes alleged that he
had “heard” that there was an alleged threat to kill him and
his family on murdertown’s “mySpace” Web page. Goynes
could not, however, link Lofton with the Web page or testify
that Lofton was the one who put the threat on the Web page.
STATE v. GOyNES 	233
Cite as 278 Neb. 230

Goynes also could not testify that he actually saw the purported
threat, and the offer of proof did not contain a printout of the
actual Web page. moreover, Goynes could not explain how he
became aware of the alleged threat or why he had a reasonable
basis to believe the purported threat or that it was connected
to Lofton.
The court held that the testimony was not admissible unless
Goynes could connect Lofton with the Web page. The court did
allow Goynes to testify that there was “something out there”
on “mySpace” with Lofton’s name, but that he did not know
if Lofton was responsible for the information. Goynes argued
the testimony regarding the “mySpace” threat would show the
reasonableness of his fear of murdertown gang members and
that Lofton was the first aggressor.
(b) Goynes’ motion for mistrial
The court denied Goynes’ motion for a mistrial because of
alleged prosecutorial misconduct. Goynes moved for a mistrial
during the State’s cross-examination of him while he was testi-
fying about the gun used in the shooting.
On direct examination, he testified that he bought the gun
only after Lofton shot at him at kountze park. On cross-
examination, the prosecutor attempted to elicit testimony from
Goynes about his previous gun ownership. The prosecutor
asked him twice whether he was familiar with guns or whether
he had previously owned a gun. After each question, defense
counsel objected to the question as irrelevant and as inadmis-
sible evidence of Goynes’ previous criminal conduct. The court
sustained both objections. The prosecutor then asked a third
time whether Goynes had previously owned a gun. Defense
counsel objected and moved for a mistrial. The court denied
the motion, stating, “Let’s move on.”
III. ASSIGNmENTS OF ERROR
Goynes assigns the following errors:
(1) The court erred in excluding evidence that third parties
associated with Lofton had made threats and committed acts of
violence against Goynes.
(2) The court erred in denying his motion for a mistrial
because of alleged prosecutorial misconduct.
234 	278 NEBRASkA REpORTS

IV. STANDARD OF REVIEW
[1] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
we review the admissibility of evidence for an abuse of
discretion.1
[2] The decision whether to grant a motion for mistrial is
within the discretion of the trial court, and we will not disturb
the ruling on appeal in the absence of an abuse of discretion.2
V. ANALySIS
1. evideNce of third -pArty threAtS
Goynes claims that the court erred in excluding evidence
of alleged third-party threats. Specifically, he contends that
the court should have allowed him to introduce evidence
of the driveby shooting at his mother’s residence and the
alleged threat against him and his family on murdertown’s
“mySpace” Web page. He argues that both pieces of evidence
support his self-defense claim because they show why he
reasonably feared murdertown gang members and Lofton in
particular as a member of the gang. He also argues the evi-
dence demonstrates two additional points: why he was carry-
ing a gun on the day of the shooting and that Lofton was the
first aggressor.
[3] To successfully assert a claim of self-defense as justi-
fication for the use of force, the defendant must have a rea-
sonable and good faith belief in the necessity of such force.3
The force used must be immediately necessary and must be
justified under the circumstances.4 This necessarily means that
the defendant asserting a claim of self-defense may introduce
evidence why he or she was justified in being fearful of the
alleged victim or that the alleged victim was the first aggres-
sor.5 Here, however, Goynes is not attempting to introduce
1 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
2 See State v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).
3 See State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
4 See id.
5 See State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995).
STATE v. GOyNES 	235
Cite as 278 Neb. 230

evidence of threats made by Lofton. Instead, he is attempting
to introduce evidence of third-party threats made by Lofton’s
fellow gang members.
We have not addressed the admissibility of threats which
were made not by a victim, but by third parties associated with
the victim. Other courts have held that evidence of third-party
threats are admissible to support a claim of self-defense if there
is also evidence from which the fact finder may find that the
defendant reasonably connected the victim with those threats.6
Assuming without deciding that third-party threats would be
admissible in cases of self-defense, the district court did not err
in excluding the testimony of the third-party threats.
Goynes claims that the evidence of the alleged third-party
threats shows that he reasonably feared for his life. We under-
stand this argument to be that because Lofton’s gang members
had threatened Goynes’ life, he was reasonable in using deadly
force against Lofton. Goynes’ testimony, however, does not
support that conclusion.
Goynes testified that he was not afraid of Lofton even
though Lofton was a member of the murdertown gang. And
what most undermines Goynes’ self-defense claim is his testi-
mony that he shot Lofton not because he thought Lofton would
kill him, but because he believed he was having a potentially
lethal asthma attack while Lofton had him in a headlock. And
remember, Goynes fired not one but four shots at Lofton as he
was running away.
Goynes makes two other arguments: (1) The threats also
show that Lofton was the first aggressor and (2) they explain
why Goynes was carrying a gun on the day of the shooting.
But this evidence was before the jury even without evidence of
these specific threats. First, the court allowed Goynes to testify
that Lofton started the fight. And second, the court allowed
him to testify that “bad blood” existed between Goynes’ and
Lofton’s gangs and that Goynes had purchased the gun for
his protection. So, even if Goynes had linked this evidence
to Lofton, his argument fails to persuade us that he was
6 People v. Minifie, 13 Cal. 4th 1055, 920 p.2d 1337, 56 Cal. Rptr. 2d 133
(1996).
236 	278 NEBRASkA REpORTS

prejudiced by the exclusion of these threats. We conclude
that the district court did not abuse its discretion in excluding
the evidence relating to the alleged driveby shooting and the
alleged “mySpace” threat.
2. proSecutoriAl miScoNduct
Goynes testified that he purchased the gun only after the
kountze park incident. On cross-examination, the prosecutor
attempted to impeach his credibility by trying to elicit testi-
mony that Goynes had in fact owned other guns before the
incident. Goynes claims that because the court sustained his
objections twice regarding his prior gun ownership, the pros-
ecutor engaged in misconduct sufficient to support a mistrial
when he asked a third time.
[4,5] The decision to grant a motion for mistrial is within
the trial court’s discretion.7 Before it is necessary to grant
a mistrial for prosecutorial misconduct, the defendant must
show 	that 	a 	substantial 	miscarriage 	of 	justice 	has 	actu-
ally occurred.8
Goynes argues that the conduct was prejudicial because his
credibility was critical to the issue of self-defense and that by
seeking to impeach his credibility through improper question-
ing, the prosecutor deprived him of a fair trial. Of course, the
State sees it differently. The State claims the prosecutor’s ques-
tions were not inflammatory, but reflected a good faith effort to
impeach Goynes’ testimony.
[6-8] When a prosecutor persists in questioning after the
court advises that the questions are not permitted, the prosecu-
tor commits misconduct.9 But the prosecutor’s conduct does not
require a mistrial if it does not mislead or unduly influence the
jury.10 Here, the question is whether the prosecutor’s conduct is
7 See State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
8 Id.
9 See, State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727
(2007); State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998) (citing State
v. Gurule, 194 Neb. 618, 234 N.W.2d 603 (1975)).
10 See id. See, also, Gutierrez, supra note 7.
STATE v. GOyNES 	237
Cite as 278 Neb. 230

so inflammatory that an admonition to the jury cannot remove
the contamination.11
The prosecutor’s questions regarding Goynes’ prior gun
ownership came after the State had called 14 witnesses and
rested. In addition, the court instructed the jury not to specu-
late on answers to questions that the court had overruled. But
more important, the jury was aware from other testimony that
through his gang, Goynes had previously been associated with
guns. After the prosecutor’s cross-examination of Goynes, in
rebuttal, a police officer testified that Goynes told him that he
was a member of the “38th Street Bloods” gang, that he asso-
ciated with other gangs, and that he and other gang members
“hang out” in kountze park, where “they hide their firearms in
the trash can.” Thus, the jury was aware that Goynes had con-
tact with guns before the Lofton shooting.
Although the prosecutor should have retreated from his ques-
tioning sooner, in the grand scheme of things, we believe the
jury would have little noted or long remembered the exchange.
In sum, the prosecutor’s conduct did not infect the jury. And
so, despite the court’s sustaining all objections to the State’s
questions regarding Goynes’ previous gun ownership, the jury
knew that Goynes had a gun before the Lofton shooting.
We conclude that the district court did not err in denying
Goynes’ motion for a mistrial.
A ffirmed.
11 See Beeder, supra note 9. See, also, State v. Pierce, 231 Neb. 966, 439
N.W.2d 435 (1989).
StAte of NebrASkA, Appellee , v.
rickey l. Jim , AppellANt.
768 N.W.2d 464
Filed July 31, 2009. 	No. S-08-953.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the district court’s findings
will not be disturbed unless they are clearly erroneous.
238 	278 NEBRASkA REpORTS