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State v. Thomas8/13/2004
In State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002) (Thomas I), this court affirmed L.T. Thomas' convictions for second degree murder, first degree assault, and two counts of use of a firearm to commit a felony. Concluding, however, that the evidence was insufficient to sustain a finding that Thomas was a habitual criminal, we vacated the sentences and remanded the cause to the district court for Douglas County with directions to conduct a new enhancement hearing and resentence Thomas. Id. Following our remand, Thomas filed a motion to recuse the judge to whom the case had been assigned and a motion in arrest of judgment. The district court denied both motions. After conducting an enhancement hearing pursuant to our mandate, the district court determined that Thomas was a habitual criminal and sentenced him accordingly. Thomas now appeals from these rulings.
BACKGROUND
The facts pertinent to this criminal prosecution are set forth in detail in Thomas I, and we summarize them here only to the extent necessary to provide context for the issues presented in this appeal. In June 1994, Thomas shot two men in a car who were near the Stage II lounge in Omaha. Thomas claimed that he shot at the men in self-defense after they had threatened him with a gun. The driver, Phillip White, was shot in the left leg and subsequently crashed into a building as he attempted to drive to a hospital at a high rate of speed. White later died as the result of the head injuries he received in the crash. The other man, Rafael Petitphait, was shot three times but survived.
Thomas was charged with first degree murder, first degree assault, and two counts of the use of a firearm to commit a felony. An amended information added a charge that Thomas was a habitual criminal . District Judge Stephen A. Davis presided over Thomas' trial, which was held from January 24 to February 7, 1995. Aybar Crawford testified for the State that he saw Thomas shoot the men in the car and that he did not see or hear either of the men threaten Thomas. On cross-examination, Crawford testified that no promises had been made to him in exchange for his testimony. During a recess, the State informed Thomas' counsel that Crawford had a pending felony conviction for which he was yet to be sentenced. On recross-examination, Crawford testified that he could not benefit from any leniency regarding the pending felony conviction because he would be returned to California for a probation violation. On redirect examination by the State, Crawford again denied that anyone had made any promises to him. The jury found Thomas guilty of the lesser-included offense of second degree murder, first degree assault, and two counts of use of a firearm to commit a felony.
At an enhancement hearing held on July 26, 1995, the State introduced certified copies of unsigned journal entries purporting to show that Thomas had two felony convictions: a 1989 conviction for attempted possession of a controlled substance with intent to deliver, for which he was sentenced to a prison term of 6 to 12 years, and a 1984 conviction for second degree assault, for which he was sentenced to a prison term of 18 to 24 months. The State also introduced "pen packs," or certified copies from the Department of Correctional Services, showing Thomas' commitment and discharge dates for both periods of incarceration, including his photographs and fingerprints. Judge Davis thereafter found Thomas to be a habitual criminal and sentenced him to prison terms of 20 years to life for second degree murder, 12 to 14 years for the use of a firearm to commit second degree murder, 12 to 14 years for first degree assault, and 10 to 12 years for the use of a firearm to commit first d
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