State v. Collins

State of NebraSka , appellee , v.
thuNder C olliNS, appellaNt.
812 N.W.2d 285
Filed May 11, 2012. 	No. S-11-891.
1. Judges: Recusal: Appeal and Error. A motion to disqualify a trial judge on
account of prejudice is addressed to the sound discretion of the trial court. An
order overruling such a motion will be affirmed on appeal unless the record estab-
lishes bias or prejudice as a matter of law.
2. Criminal Law: Pretrial Procedure: Appeal and Error. Discovery in a criminal
case is generally controlled by either a statute or court rule. Therefore, unless
granted as a matter of right under the Constitution or other law, discovery is
within the discretion of a trial court, whose ruling will be upheld on appeal unless
the trial court has abused its discretion.
3. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
4. Judges: Recusal. In order to demonstrate that a trial judge should have recused
himself, the moving party must demonstrate that a reasonable person who knew
the circumstances of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual bias or prejudice
was shown.
5. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on
the basis of bias or prejudice bears the heavy burden of overcoming the presump-
tion of judicial impartiality.
6. Depositions: Proof. Under Neb. Rev. Stat. § 29-1917 (Reissue 2008), for a
defendant to obtain a deposition, the defendant must make a factual showing that
the deponent’s testimony either (1) may be material or relevant to an issue in the
trial or (2) may assist the parties preparing for trial in their respective cases.
7. Depositions: Statutes: Words and Phrases. The plain language of Neb. Rev.
Stat. § 29-1917 (Reissue 2008), by using the term “may,” indicates that the grant-
ing of a deposition is within the trial court’s discretion. As such, a defendant is
not entitled, as a matter of right, to a deposition pursuant to § 29-1917.
Appeal from the District Court for Douglas County: Gary b.
raNdall, Judge. Affirmed.
Steve Lefler and Kyle C. Hassett, of Lefler & Kuehl Law,
for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
heaviCaN, C.J., WriGht, C oNNolly, StephaN, MCC orMaCk ,
and M iller-lerMaN, JJ., and pirtle , Judge.
854 	283 NEBRASKA REpoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

MCC orMaCk , J.
NATURE oF CASE
Thunder Collins was tried and convicted for numerous
crimes, including first degree murder. on Collins’ first appeal,
we remanded the cause for a hearing to determine whether
Collins was prejudiced by the jury’s weekend separation during
its deliberations. At that hearing, Collins moved for the judge’s
recusal and to conduct discovery. Both motions were denied.
Following the hearing, the district court determined that Collins
suffered no prejudice from the jury’s separation and overruled
his motion for new trial. Collins appealed each of those rulings.
We conclude that the district court did not abuse its discretion,
and we affirm Collins’ convictions and sentences.
BACKGRoUND
The circumstances surrounding this case are set out in
detail in State v. Collins1 and need not be repeated here.
Suffice it to say, the record showed that Collins worked with
two California-based drug dealers to supply crack cocaine in
omaha, Nebraska. Rather than continue to split the profits,
Collins tried to eliminate his partners. While they were all at
an omaha house to prepare the drugs for distribution, Collins
shot them both—one survived, and one did not. Collins was
apprehended and charged with and convicted of first degree
murder, attempted second degree murder, first degree assault,
and two counts of use of a weapon to commit a felony.
He was sentenced to life in prison plus at least 90 years’
imprisonment.2
on Collins’ first appeal, we concluded that the district
court erred in allowing the jury to separate during delibera-
tions without Collins’ express consent. We determined that this
error resulted in a presumption of prejudice in Collins’ favor,
but that the State would be given an opportunity to rebut that
presumption. We then remanded the cause for an evidentiary
hearing on that issue.3
1 State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
2 See id.
3 See id.
STATE v. CoLLINS 	855
Cite as 283 Neb. 854

At 	the 	hearing, 	Collins 	argued 	several 	motions. 	First,
Collins moved the presiding judge to recuse himself from the
proceeding. Essentially, Collins argued that it would be diffi-
cult for the judge to admit his mistake and follow this court’s
direction on remand and that therefore, the judge should
recuse himself. Collins noted that a judge should avoid even
the appearance of impropriety and that a reasonable person,
when presented with these circumstances, might question
the judge’s impartiality. Collins also claimed that the judge’s
scheduling of the remand hearing on the same day as the hear-
ing on Collins’ preliminary motions indicated that the judge
had already decided to deny Collins’ motions, before ever
hearing argument, which demonstrated bias. The judge denied
the motion for recusal, explaining that Collins had not offered
any evidence of bias or prejudice and that, considering the
issue on remand, the judge was in the best position to deter-
mine if Collins had been prejudiced by the jury’s separation
during deliberations.
Second, Collins moved the court to allow Collins to depose
each of the jurors who had been subpoenaed to testify at the
hearing. Collins argued that each juror’s testimony was cru-
cial to the issue the court was asked to decide on remand:
whether the separation of the jury during deliberations had
prejudiced Collins. And weighing the penalty to be imposed
on Collins—life in prison—with the small burden of going
through a deposition, Collins argued that he should be able
to depose each juror. Collins also explained that while many
of the jurors had willingly talked to him before the hearing,
several had refused, stating that they preferred to speak in the
courtroom. Moreover, Collins requested leave to subpoena
each juror’s telephone and computer usage records for the
relevant time period, to ensure that the jurors had followed
their instructions during their separation. The district court
denied Collins’ motion, noting that the State had shared all of
the information from its investigation and interviews with the
jurors and that Collins already had the opportunity to inter-
view the jurors.
The State then proceeded to call each juror to testify. All
12 jurors testified that they had followed their instructions
856 	283 NEBRASKA REpoRTS

and they had not accessed any media sources regarding the
case. one alternate juror also took the stand and testified that
he and the other alternate juror never participated in delibera-
tions and that they had followed the judge’s instructions. Each
juror was subjected to direct and cross-examination. Both the
State and Collins then gave closing argument.
Four days later, the district court entered a written order. The
order memorialized the district court’s initial rulings regard-
ing Collins’ previous motions, overruling both, and explained
that the State had proved, “beyond a reasonable doubt,” that
Collins suffered no injury from the jury’s separation during its
deliberations. Collins appealed.
ASSIGNMENTS oF ERRoR
Collins assigns, restated, that the district court erred in
(1) denying Collins’ motion for recusal; (2) denying Collins’
motion to depose each juror to assess whether he or she had
accessed prohibited information during deliberations; and (3)
overruling Collins’ motion for new trial, because the State
failed to prove that Collins suffered no prejudice from the
court’s failure to sequester the jury.
STANDARD oF REVIEW
[1] A motion to disqualify a trial judge on account of preju-
dice is addressed to the sound discretion of the trial court.
An order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter
of law.4
[2] Discovery in a criminal case is generally controlled
by either a statute or court rule. Therefore, unless granted
as a matter of right under the Constitution or other law, dis-
covery is within the discretion of a trial court, whose ruling
will be upheld on appeal unless the trial court has abused
its discretion.5
4 State v. Nolan, ante p. 50, 807 N.W.2d 520 (2012).
5 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Tuttle, 238
Neb. 827, 472 N.W.2d 712 (1991).
STATE v. CoLLINS 	857
Cite as 283 Neb. 854

[3] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed.6
ANALYSIS
MotioN for reCuSal
Collins argues that the judge’s order shows an inability to
properly address the issue presented on remand. He also argues
that the judge had predetermined the outcomes for both the
motion for recusal and the motion to take depositions before
hearing argument. Collins claims that under these circum-
stances, a reasonable person would question the judge’s impar-
tiality. our review of the record, however, does not indicate any
bias or prejudice on the part of the judge, and no reasonable
person under the circumstances would question the judge’s
impartiality in this case. As such, the judge did not abuse his
discretion in denying Collins’ motion for recusal.
[4,5] We have explained that in order to demonstrate that
a trial judge should have recused himself, the moving party
must demonstrate that a reasonable person who knew the cir-
cumstances of the case would question the judge’s impartiality
under an objective standard of reasonableness, even though no
actual bias or prejudice was shown.7 In addition, a defendant
seeking to disqualify a judge on the basis of bias or prejudice
bears the heavy burden of overcoming the presumption of judi-
cial impartiality.8
Collins first argues that a reasonable person reading the
judge’s order on remand would question the judge’s impar-
tiality. According to Collins, this is because the judge, in his
order, “spent more time protecting himself, explaining why
[this court] was wrong, than he did addressing the reason for
the remand.”9
6 State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011).
7 State v. Nolan, supra note 4.
8 Id.
9 Brief for appellant at 17.
858 	283 NEBRASKA REpoRTS

our review of the judge’s order reveals no bias or preju-
dice, nor is such bias or prejudice reasonably implied. The
judge accurately stated both our holding in State v. Collins10
and the issue on remand. It is true that the judge’s order
included information which was not relevant to the inquiry
on remand; namely, his recounting Collins’ failure to object
to the jury instruction regarding the possible weekend separa-
tion of the jury. Such information was irrelevant because the
sole issue on remand was whether the State could rebut the
presumption of prejudice. Still, the judge understood the task
before him:
The Supreme Court found error in the Court’s failure to
obtain “express agreement or consent” for the jury’s sepa-
ration after submission of the case. [Collins] is entitled
to a presumption that he was prejudiced by this separa-
tion and the State has a right to rebut that presumption
on remand by showing that no injury resulted from the
jury’s separation.
This accurately framed the issue on remand. The judge then
proceeded to analyze the evidence adduced at the hearing,
and he concluded that the State had rebutted the presumption
of prejudice. While the judge may have included an excess of
information, the language of the order does not reveal any bias
or prejudice, and a reasonable person under the circumstances
would not question the judge’s impartiality in this case.
Collins also argues that exhibit 374 shows that, before
hearing argument, the judge had already made up his mind
concerning both the motion for recusal and the motion for
discovery. As a result, Collins claims the judge should have
recused himself. Exhibit 374 is a letter from Collins’ counsel
to the judge. In that letter, counsel took issue with the court’s
scheduling of the evidentiary hearing on the same day as the
hearings scheduled for Collins’ preliminary motions. Collins’
counsel explained that it did not make sense for the judge to
have the State subpoena the jurors for the evidentiary hearing
if the judge had not already decided to hold the hearing. And
if that were the case, the judge had already decided to deny
10 State v. Collins, supra note 1.
STATE v. CoLLINS 	859
Cite as 283 Neb. 854

Collins’ other motions without ever hearing argument, demon-
strating bias against Collins.
The judge’s scheduling of hearings does not, by itself,
require finding that the judge should have recused himself. In
State v. Thomas,11 we explained:
Absent extraordinary circumstances, in order to dis-
qualify a judge based upon the appearance of impropri-
ety, the bias and prejudice must stem from a nonjudicial
source and not from what the judge learned from his
or her prior involvement in the defendant’s case or
cases that concerned parties or witnesses in the defend-
ant’s case.
Even assuming that the judge had preliminarily decided the
outcome of these motions, Collins has made no showing that
the judge based his decision on anything other than the law
and facts of the case. In other words, any alleged bias or prej-
udice did not “stem from a nonjudicial source.” Additionally,
the court gave both sides an opportunity to argue their posi-
tions at the hearing, and then the court issued its rulings.
The rulings themselves do not show any bias or prejudice
against Collins.
While we found no similar case in our law, the Supreme
Court of ohio has addressed an analogous situation. In In re
Disqualification of Aubry,12 the trial judge scheduled a resen-
tencing hearing for the defendant immediately after a hearing
on the defendant’s motion to withdraw his guilty plea. The
defendant claimed that this showed the judge had already
decided to deny the motion to withdraw and demonstrated that
the judge was prejudiced against the defendant.13
The court first noted that a trial court had discretion to
manage its own docket and that no express language existed in
the scheduling order indicating bias. The court then explained
that it would not be unusual for a judge, after reviewing
11 State v. Thomas, 268 Neb. 570, 581, 685 N.W.2d 69, 80 (2004) (emphasis
supplied).
12 In re Disqualification of Aubry, 117 ohio St. 3d 1245, 884 N.E.2d 1095
(2006).
13 See id.
860 	283 NEBRASKA REpoRTS

the parties’ legal memorandums and conducting research, to
have reached some preliminary conclusions about the merits
of the defendant’s motion to withdraw his guilty plea. And
that did not create a disqualifying bias or prejudice.14 The
court concluded:
Judges are not required to wait until the eleventh hour to
begin forming preconceptions about the proper resolution
of the legal questions presented to them. In the absence of
any evidence that the judge is likely to resolve the motion
on grounds other than the relevant facts and the relevant
law, her decision to schedule a sentencing hearing right
after the motion hearing does not demonstrate that she
lacks the requisite impartiality to decide fairly the issues
presented to her at both of those hearings.15
We agree with this reasoning, and likewise conclude that
there is no evidence that the judge in this case was required
to recuse himself. A reasonable person, knowing the circum-
stances of this case, would not question the judge’s impartiality
under an objective standard of reasonableness. This assignment
of error has no merit.
MotioN to depoSe JurorS
Collins asserts that the district court erroneously denied
his motion to depose each juror and also obtain telephone
and computer usage records. Collins argues that such infor-
mation was material to the issue on remand and would have
been helpful in impeaching the jurors’ testimony during cross-
examination. We agree that such evidence would be relevant to
the issue on remand. But because that evidence was unlikely to
be helpful in any significant respect, and Collins’ provided no
factual basis to support a different determination, we conclude
that the district court did not abuse its discretion in denying
Collins’ motion.
Much of Collins’ brief is appropriately dedicated to analyz-
ing Neb. Rev. Stat. § 29-1917 (Reissue 2008), which deals
with depositions in a criminal proceeding. But Collins also
14 See id.
15 Id. at 1246, 884 N.E.2d at 1096.
STATE v. CoLLINS 	861
Cite as 283 Neb. 854

claims that the court’s refusal to allow Collins to depose each
juror under § 29-1917 resulted in a due process violation. We
note at the outset that this is not a constitutional issue. As we
explained in State v. Tuttle,16 a defendant in a criminal proceed-
ing has no general due process right to discovery.
[6,7] Instead, resolution of this assigned error is controlled
by statute, and specifically by § 29-1917. That statute states, in
relevant part:
The court may order the taking of the deposition [of a
witness] when it finds the testimony of the witness:
(a) May be material or relevant to the issue to be deter-
mined at the trial of the offense; or
(b) May be of assistance to the parties in the prepara-
tion of their respective cases.
Thus, for a defendant to obtain a deposition, the defendant
must make a factual showing that the deponent’s testimony
either (1) may be material or relevant to an issue in the trial or
(2) may assist the parties preparing for trial in their respective
cases.17 But the plain language of the statute, by using the term
“may,” also indicates that the granting of a deposition is within
the trial court’s discretion.18 As such, we have concluded that
a defendant is not entitled, as a matter of right, to a deposition
pursuant to § 29-1917.19
In Tuttle, the defendant wished to depose seven witnesses
listed on the information.20 When asked why the depositions
were needed, the defendant’s counsel explained that all the
witnesses’ testimony would be material to the defendant’s case,
and he explained that they had already given written state-
ments or were somehow implicated in the offense. As such,
he concluded that the individuals were “‘extremely material
16 State v. Tuttle, supra note 5 (citing Weatherford v. Bursey, 429 U.S. 545,
97 S. Ct. 837, 51 L. Ed. 2d 30 (1977)).
17 See State v. Vela, supra note 5.
18 See, e.g., State v. County of Lancaster, 272 Neb. 376, 721 N.W.2d 644
(2006).
19 See State v. Vela, supra note 5.
20 State v. Tuttle, supra note 5.
862 	283 NEBRASKA REpoRTS

and relevant.’”21 He also explained that he was unable to find
one of the witnesses, and had not attempted to interview the
others, but that it was important to “‘question them under oath
prior to the trial in order to get . . . their version of the state-
ments before trial.’”22 The State argued that the defendant was
required to make some showing that the depositions would
provide useful information before they should be granted.
The district court overruled the defendant’s motion, explaining
that it would not allow “‘wholesale depositions,’” but that the
defendant could request depositions in the future if he showed
a special need.23
We explained that a party seeking a deposition in a criminal
proceeding must make a factual showing to the court that the
deponent’s testimony satisfies one of the two statutory condi-
tions in § 29-1917. We also noted that there was no indication
that “some assistance . . . might be gained in preparing [the
defendant’s] defense” from the proposed depositions.24 Thus,
we concluded that the district court did not abuse its discretion
in refusing to order depositions.25
Collins’ counsel has provided similar justifications here.
Defense counsel claims that the jurors’ testimony was mate-
rial and relevant to the issue on remand and that he needed to
depose the jurors for impeachment purposes. He also claims
that he needed telephone and computer usage records to verify
that the jurors had each followed the jury instructions. While
we agree that the jurors’ deposition testimony and records
would have been relevant to the issue on remand, there was no
reason to think that deposing the jurors, or subpoenaing their
records, would provide any useful information beyond what
could be obtained through their live testimony.
Defense counsel had an opportunity to interview many of
the jurors prior to the hearing. And while a few jurors refused
21 Id. at 831, 472 N.W.2d at 715.
22 Id. at 831, 472 N.W.2d at 716.
23 Id.
24 Id. at 837, 472 N.W.2d at 719.
25 State v. Tuttle, supra note 5.
STATE v. CoLLINS 	863
Cite as 283 Neb. 854

to speak with defense counsel, explaining that they would
prefer to speak in court, defense counsel was aware of the sub-
stance of their testimony. Additionally, the State had conducted
an investigation and interviewed each of the jurors, and that
information was turned over to Collins in its entirety. Neither
the State’s investigation nor defense counsel’s interviews with
the jurors gave any indication that the jury had violated their
instructions, or provided any reason to believe depositions or
subpoenaed records were necessary. Thus, as in Tuttle, there
was no indication that the depositions or records would mate-
rially assist Collins in preparing for the hearing. Under these
circumstances, we cannot say the district court abused its dis-
cretion in overruling Collins’ motion to take depositions and
subpoena records.
MotioN for NeW trial
Collins claims that the district court erred in overruling
his motion for new trial. Collins argues that the State failed
to rebut the presumption of prejudice and that therefore, the
court’s failure to sequester the jury requires a new trial. our
review of the record, however, shows that the State rebut-
ted any presumed prejudice from the jury’s separation. This
assigned error has no merit.
Collins’ brief focuses on the failure of the district court to
sequester the jury and the possibility that the jurors accessed
improper information. We agree that the separation of the jury
during deliberations was error—that is why we remanded this
cause on Collins’ first appeal. And we also agree that the jurors
could have accessed improper information—that is why a
rebuttable presumption of prejudice exists in Collins’ favor. But
the issue is whether the State effectively rebutted that presump-
tion by showing that the jurors followed their instructions and
properly arrived at their verdict. The State did so.
As noted by the district court, each juror testified that he
or she had followed all the jury instructions from start to fin-
ish, including while the jury was separated. The jurors did
not read news about the case, watch or hear broadcasts about
the case, or conduct their own independent research into
issues in the case. The district court found their testimony
864 	283 NEBRASKA REpoRTS

to be completely credible. The district court also found that
their testimony effectively rebutted any presumed prejudice.
There is nothing in the record to support drawing a different
conclusion. The district court did not abuse its discretion in
overruling Collins’ motion for new trial. This assignment of
error has no merit.
CoNCLUSIoN
For each of the foregoing reasons, we affirm the district
court’s judgment.
affirMed.
STATE Ex REL. CoUNSEL FoR DIS. v. DoRSEY 	865
Cite as 283 Neb. 865
State of NebraSka ex rel . C ouNSel for diSCipliNe
of the NebraSka SupreMe C ourt, relator ,
v. JoSeph M. dorSey, reSpoNdeNt.
812 N.W.2d 302
Filed May 11, 2012. 	No. S-12-223.
original action. Judgment of disbarment.
heaviCaN, C.J., WriGht, C oNNolly, StephaN, MCC orMaCk ,
and M iller-lerMaN, JJ.
per C uriaM.
INTRoDUCTIoN
This case is before the court on the voluntary surrender of
license filed by respondent, Joseph M. Dorsey, on March 22,
2012. The court accepts respondent’s voluntary surrender of his
license and enters an order of disbarment.
STATEMENT oF FACTS
Respondent was admitted to the practice of law in the
State of Nebraska on June 25, 1973. Respondent was also
licensed to practice law in the District of Columbia, but the
District of Columbia Court of Appeals disbarred him from the
practice of law on December 14, 1983, for obtaining money
fraudulently and dishonestly and thereby engaging in conduct
involving moral turpitude. See In re Dorsey, 469 A.2d 1246
(D.C. 1983).