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10/23/81 STATE NEBRASKA v. BILLY R. BILLUPS

October 23, 1981

STATE OF NEBRASKA, APPELLEE,
v.
BILLY R. BILLUPS, APPELLANT



Appeal from the District Court for Douglas County: James M. Murphy, Judge.

Krivosha, C.j., Boslaugh, McCown, Clinton, White, and Hastings, JJ.

SYLLABUS BY THE COURT

1. Warrantless Searches: Search and Seizure. The voluntariness of the consent to search should be determined from the totality of all the circumstances surrounding it.

2. Warrantless Searches: Search and Seizure. The question of whether a consent to search is voluntarily given is a question of fact.

3. Warrantless Searches: Search and Seizure. When the prosecution seeks to justify a warrantless search by proof of voluntary consent it is not limited to proof that the consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

The opinion of the court was delivered by: Krivosha

The appellant, Billy R. Billups (Billups), appeals from a conviction based upon a jury verdict which had found Billups guilty of committing a violation of Neb. Rev. Stat. § 28-324(1) (Reissue 1979), robbery, a Class II felony; a violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 1979), using a firearm to commit a felony, a Class III felony; and a violation of Neb. Rev. Stat. § 28-308(1) (Reissue 1979), assault in the first degree, a Class III felony. Billups was sentenced to a term of 15 to 20 years on the robbery charge; 5 to 20 years on the use of a firearm charge, to be served consecutively to the robbery sentence; and 5 to 20 years on the first degree assault charge, to be served concurrently with the robbery sentence and use of a firearm sentence.

Billups assigns two errors. The first error assigned by Billups is that the trial court erred in refusing to suppress evidence seized at appellant's home while making an alleged unlawful arrest. The second assignment of error claimed by Billups is that the trial court erred in failing to instruct the jury on a lesser-included offense of second degree assault, as requested by Billups. We believe that appellant's claim of error in both instances must be denied and the judgment and sentences affirmed in all respects.

We shall discuss the assignments of error in the order presented by appellant. Before doing so, however, a brief summary of the facts is necessary.

On the morning of March 27, 1980, Gary Cady was working at the Imperial Oil Company gas station in Omaha, Nebraska. At about 8:15 a.m. he noticed two males sitting in a car near the air pump. One of the men, whom Cady later identified as Billups, came into the station and asked for change. Cady indicated to Billups that he did not have any money with him. Billups then began to talk about the old manager who used to help him out. The conversation lasted about 3 or 4 minutes and Billups departed the station. After Cady had pumped gas for a number of cars he went back inside the station to put the money into the safe. At that point Billups entered the station again and headed toward the men's room. He was wearing a "long gray coat with checks on it." He suddenly jumped back and displayed a revolver which he pointed at Cady and ordered him to "step on back here." Cady went into the backroom of the station and was ordered to lie down on the floor and not move. While Cady was lying on his stomach Billups took Cady's billfold and the coin changer and asked him for the keys to the safe. Cady told Billups that he did not have the keys for the bottom safe but did for the top safe. While Cady was getting up to get the keys out of his coat pocket, Billups proceeded to shoot Cady, once in the shoulder or arm, which knocked him back, and a second time in the chest, right above the heart. Cady fell to the floor, at which time Billups shot him again. At that point Billups fled the station, taking with him $75.10.

Shortly thereafter help arrived and the police were summoned. Before Cady was taken to the hospital he gave a description of Billups to the police. Cady also described the coat which Billups was wearing. It was a long gray coat with checks of black or gray.

At the hospital Cady had one bullet surgically removed from his right shoulder, the other bullets having glanced off of him. The hospital personnel had to dig the bullet out and then sew up the wound. At the hospital Cady identified Billups as the robber from numerous photographs shown him by a police officer. With this information the police went to where Billups lived with his brother, Bernard, and Bernard's wife, Edith.

One of the police officers present at Billups' residence testified at a suppression hearing requested by Billups that when the police arrived at Billups' house they observed two women in front of the house getting into a car. One of the women was Edith Billups, Bernard Billups' wife. She was asked if Billups was at home and she replied that she believed he was. Testimony discloses that at that point Edith Billups turned from the car and proceeded to walk back to the house with the police officers following her. She knocked on the front door and it was opened by Bernard Billups. The officers asked if appellant was home and were told by Bernard Billups that his brother was upstairs sleeping.

The officers then went upstairs and placed Billups under arrest. As the officers were leaving the residence with Billups they noticed a black-and-white tweed-type coat hanging in a hallway just inside the front door. The police took the coat with them when they took Billups to police headquarters. Cady ...


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