August 27, 2013
State of Nebraska, appellee,
Shelton W. Fils, appellant.
NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Douglas County: Marlon A. Polk, Judge.
Nicole L. Cavanaugh, of Law Office of Nicole L. Cavanaugh, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Shelton W. Fils appeals his convictions of possessing a firearm by a prohibited person, making terroristic threats, resisting arrest, and committing a felony with a deadly weapon. Fils challenges the sufficiency of the evidence supporting his convictions, as well as the trial court's denial of his motions to suppress and its failure to inquire into the impressions formed by a juror exposed to outside information. Finding no merit to his assertions, we affirm the decision of the trial court.
The charges in this case stem from incidents occurring in January 2012. At that time, Fils was living with his girlfriend, Charlene Clifton, her mother, and her stepfather, Steve Campbell. On the date of the incident, Campbell heard Fils arguing with Campbell's wife. Campbell intervened in the argument, causing it to escalate. Fils suggested that they "take the matter outside."
Once outside, Fils told Campbell that he had his "Glock" in his trunk and proceeded down the street to a vehicle. A woman in the vehicle popped the trunk open, and Fils removed a blue pipe. Campbell testified that Fils approached him brandishing the pipe, and Campbell gave chase. After being chased for a while, Fils got into the vehicle, telling Campbell that he would be back.
After the incident between Fils and Campbell, Clifton arrived at the house. Campbell relayed details of the incident to Clifton, who then telephoned Fils. Clifton informed Fils that he needed to pick up his clothes from the home within the next 10 minutes or she would drop them off for him. Clifton waited for Fils, but when he did not show up at the house, she called him again. Clifton first asked Fils where he was, and next, she asked him why he was at the pawnshop. Campbell overheard both of these telephone conversations.
Clifton then left the house, and Fils returned. This time, Fils had a black handgun. Campbell testified that when Fils returned, Fils jumped out of the vehicle, reached in his pants, pulled out a gun, aimed it at Campbell's head, and said, "Now what's up? I told you I would be back. What's up now? Who's the baddest? I will kill you right here." Fils eventually left, but he told Campbell he would be back that night to kill him. Fils never fired the gun before leaving.
After Fils left, Campbell telephoned the police to report the incident. A police dispatch went out that a male and female were in a blue Nissan near 30th and Kansas Streets in Omaha, Nebraska, and that the male was displaying a gun. Both uniformed and nonuniformed officers responded. The officers located the Nissan as it traveled to 30th and Ames Avenue, where the man got out of the vehicle and went to a parking lot. Three uniformed officers, including Officer Brendan O'Flynn, remained at the scene where Fils exited the Nissan. A nonuniformed police officer followed the vehicle as it pulled into the police station that was about 500 yards away. The officer made contact with the driver and remained with her until uniformed officers arrived and arrested her.
Officer O'Flynn and the two other officers followed Fils into a parking lot. As the officers approached, Fils had his hands in his waistband as if he were reaching for a gun. He began "fumbling around for something" and walking backward, into the traffic on Ames Street, ultimately retreating around a vehicle stopped at a red light. The officers pursued, all the while telling Fils to stop, show them his hands, and get on the ground.
Fils did not comply with their commands, so two officers approached Fils from around the front of the vehicle stopped at the red light while another officer approached from the rear and grabbed him from behind. Fils resisted the officers' efforts to place his arms behind his back, requiring them to perform an "arm bar takedown." The officers worked to control Fils as the traffic light on Ames Street changed from red to green and traffic began moving and swerving around them.
On the ground, Fils continued fighting, trying to kick up his knees, and constantly striving to get both hands toward his waistband. Even after the officers handcuffed him, he continued moving side to side. During the scuffle, Officer O'Flynn heard metal hit the pavement and recovered a gun from Fils' shin area.
After the struggle, an officer placed Fils in the back of his cruiser. Officer O'Flynn read him his Miranda rights and asked Fils the questions listed on the rights advisement form. He wrote Fils' answers down on a notepad and later transferred the answers from his notepad to a rights advisory form. After receiving his Miranda rights, Fils engaged in a 5-minute conversation with Officer O'Flynn. During this conversation, he admitted that earlier that day the driver of the Nissan had gone to a pawnshop and obtained the gun that the officers found on Fils. Additional rounds for this gun were discovered in the Nissan. Fils was arrested and charged as stated above.
1. Motions to Suppress
Prior to trial, Fils filed two motions to suppress: one to suppress evidence gained from his person (the gun) and a second to suppress the statements he made to Officer O'Flynn after he was taken into custody. In his motion to suppress evidence found on his person, Fils argued that the search and seizure violated his rights under the 4th and 14th Amendments, because the search and seizure were made without a valid warrant or probable cause. In his motion to suppress statements he made to Officer O'Flynn, Fils argued that he did not properly waive his right against self-incrimination and that the police improperly threatened, coerced, deceived, or induced him into speaking. The trial court denied both of Fils' motions to suppress, and the case proceeded to trial.
2. Juror Exposure to Outside Information
After voir dire, but prior to opening statements, Fils moved for a mistrial on the grounds that a juror had been exposed to outside information about the trial. Fils became concerned after learning that an employee of the County Attorney's office had stated, on the elevator in the presence of a juror, that she was going to court to watch a "felon in possession" trial. The State argued that the comment did not prejudice Fils because the trial court had already advised the jury during voir dire that the defendant was charged with possession of a firearm by a prohibited person. Furthermore, Fils had agreed to stipulate that he was a convicted felon. The trial court denied Fils' motion for mistrial.
At trial, the State presented testimony from Campbell and several of the police officers. As part of Campbell's testimony, he repeated statements he heard Clifton make while on the telephone with Fils. Fils initially objected to this testimony, and the objection was sustained; however, in response to further questions, Campbell repeated statements made by Clifton without any further objection.
The jury found Fils guilty of possessing a firearm by a prohibited person, making terroristic threats, resisting arrest, and committing a felony with a deadly weapon.
Fils timely filed this appeal.
III. ASSIGNMENTS OF ERROR
On appeal, Fils argues that the evidence was insufficient to support his convictions beyond a reasonable doubt and that the trial court erred in denying his motions to suppress, admitting hearsay testimony into evidence, and failing to determine whether he was prejudiced by a juror's overhearing outside information about the trial.
1. Sufficiency of Evidence
In reviewing a criminal conviction for sufficiency of the evidence, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact. State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004). An appellate court will affirm a conviction, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. Id.
Fils claims that the evidence was insufficient to support his convictions of resisting arrest and terroristic threats. We will discuss each in turn.
(a) Resisting Arrest
Fils argues that the evidence does not support the charge of resisting arrest because Fils did not realize that he was under arrest. We disagree, because the evidence shows that Fils failed to follow the commands of uniformed police officers and resisted their attempts to take him into custody.
Neb. Rev. Stat. § 28-904 (Reissue 2008) explains that an individual resists arrest by "intentionally preventing or attempting to prevent a peace officer . . . from effecting an arrest" while engaging in any number of specified actions which place the peace officer at risk. The prohibited actions include: using any means which "creates a substantial risk of causing injury to the peace officer or another" and employing means that require an officer to use "substantial force to overcome resistance to effecting the arrest."
An officer effects an arrest by "'taking custody of another person for the purpose of holding or detaining him to answer a criminal charge. . . .'" State v. White, 209 Neb. 218, 220, 306 N.W.2d 906, 909 (1981). An officer seizes or takes custody of a person
"(1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested."
If an individual struggles while officers are working to arrest him, he commits the crime of resisting arrest. In State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001), the Nebraska Supreme Court determined that a defendant's conduct in resisting handcuffing and struggling after she had been informed she was under arrest was sufficient to sustain her conviction for resisting arrest. However, a police officer is not required to verbally inform an individual he is under arrest, if the officer's conduct indicates an arrest. See U.S. v. Sledge, 460 F.3d 963 (8th Cir. 2006) (interpreting Nebraska law).
Fils argues that he did not know he was under arrest because none of the officers witnessed him in possession of a firearm, the officers did not announce that he was under arrest, and he was wrestled to the ground from behind. The police officers did not need to verbalize to Fils that he was under arrest, however, because their intent to arrest him was evident from their actions. The uniformed officers approached Fils, continually shouting commands, which he disobeyed. One of the officers seized Fils from behind, effectuating arrest. See id. After he seized Fils, Fils continued to resist. His resistance endangered the police officers by requiring them to wrestle him into submission in the middle of oncoming traffic, and his actions required three police officers to use substantial force.
Viewing the evidence in the light most favorable to the State, as we must, the evidence is sufficient to support Fils' conviction for resisting arrest.
(b) Terroristic Threats
Fils argues that the evidence was insufficient to convict him of making terroristic threats to Campbell because Campbell's testimony was not credible. He claims Campbell's testimony was inconsistent with Campbell's prior sworn affidavit in which Campbell recanted his statement that Fils threatened him with a weapon. At trial, Campbell testified that he signed the affidavit because Fils paid him to do so and he was "tired of . . . Fils calling [him]." According to Fils, we should disregard Campbell's testimony as a matter of law because it conflicts with his prior sworn affidavit. In the absence of Campbell's testimony, Fils argues that there is insufficient evidence to convict him of making terroristic threats.
While Fils is correct that Nebraska law requires a party's testimony to be disregarded as a matter of law when the party, without reasonable explanation, changes his testimony to meet the exigencies of trial, the same rule does not apply to a nonparty witness. See State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992). In Osborn, the defendant argued that one of the victim witnesses changed his testimony at trial and that therefore, the testimony should be disregarded. The Nebraska Supreme Court disagreed, distinguishing between a nonparty witness and a party. The court stated that "an inconsistent or contradictory statement by a witness who is not a party opponent is a factor which may affect a jury's evaluation of a witness' credibility or weight to be given such witness' testimony." Id. at 431, 490 N.W.2d at 166. Just as the victim witness was not a party in Osborn, neither is Campbell a party in the present case. Therefore, the inconsistency in Campbell's testimony goes to the weight, and not the admissibility, of his statements.
The jury was tasked with determining Campbell's credibility based on the entirety of his testimony, and it is not the role of the appellate court to question the jury's determination in that regard. Campbell's testimony, viewed in the light most favorable to the State, is sufficient to convict Fils of making terroristic threats.
2. Motions to Suppress
Fils argues that the trial court erred in denying his motions to suppress evidence in the form of statements he made while in custody and evidence obtained from searching his person. We disagree.
(a) Motion to Suppress Statements
Fils argues that the trial court erred in denying his motion to suppress statements made to police officers, because there was no evidence that he understood his rights when he waived them. We disagree.
In reviewing a motion to suppress a statement on the involuntariness of the statement, including an argument that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009). With regard to historical facts, we review the trial court's findings for clear error. Whether those facts suffice to meet constitutional standards, however, is a question of law which we review independently of the trial court's determination. Id.
It is a mixed question of law and fact whether a statement was voluntarily made, whether a custodial interrogation has occurred, whether sufficient Miranda warnings were given to the suspect, whether properly advised Miranda rights were thereafter waived, whether there has been an unambiguous invocation of the right to remain silent or to have counsel, and whether invocation of those rights has been scrupulously honored. Id. All these questions involve the application of the facts surrounding the statement to the constitutional rubric mandated by the U.S. Supreme Court and are reviewed under the two-prong standard of review set forth above.
There is no dispute that Fils was in police custody when he spoke with Officer O'Flynn. Fils' argument is that there was no evidence he understood his rights and waived them knowingly and voluntarily. However, Officer O'Flynn testified that he asked Fils all of the questions on the form, wrote the answers on a notepad, and subsequently transferred them to the rights advisement form. Fils does not argue that the statements on the rights advisory form were legally insufficient or that they misstated his answers.
There is nothing in the record to support Fils' recent claim that he did not understand his rights. It is incumbent upon the appellant to present a record to support the errors assigned. State v. Jim, 13 Neb.App. 112, 688 N.W.2d 895 (2004). Consequently, we find that this assignment of error is without merit.
(b) Motion to Suppress Evidence Seized From Fils' Person
Fils argues that the trial court erred in denying his motion to suppress evidence seized from his person because no probable cause justified the search and seizure. Fils did not preserve this issue for appellate review, however, because he failed to object to the admission of evidence seized from his person at trial. "The failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal." State v. Trotter, 262 Neb. 443, 466-67, 632 N.W.2d 325, 344 (2001).
The only evidence seized from Fils' person was the gun retrieved from his left pant leg. Although Fils filed a motion to suppress this evidence, he did not object when the evidence was adduced at trial. Accordingly, Fils waived any objection to the admission of the evidence and did not properly preserve it for appellate review.
3. Clifton's Statements to Fils
Fils argues that it was clear error for the trial court to allow Campbell to testify to statements he heard Clifton make after the court sustained an objection to similar testimony. While the testimony may have been inadmissible hearsay, we disagree that it is reversible error absent a hearsay objection at trial.
In order to appeal an erroneous admission of evidence, a party must timely object, stating the specific grounds for the objection unless the grounds are apparent from the context. State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992). A party is not required to make a timely objection to the admission of evidence if the party has been granted a standing objection, see State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 162 (2011), or if the party previously objected to similar testimony from the same witness and the trial court overruled the objection, see State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
In this case, Campbell began to repeat what he heard Clifton say on the telephone. The defense objected to this testimony on hearsay grounds, and the objection was sustained. The State next asked Campbell questions about Clifton's demeanor on the telephone and the number of telephone calls she made. As part of Campbell's response to those questions, he repeated statements made by Clifton. The defense did not object to these statements or move to have them stricken.
In order to preserve his hearsay objection for appeal, Fils had a duty to object when Campbell began repeating Clifton's statements. Fils had not been granted a continuing objection to the testimony, and his initial objection was sustained rather than overruled. By failing to object to Clifton's continued testimony, Fils waived his right to appeal the admission of this evidence. Accordingly, this assignment of error is without merit.
4. Juror Exposure to Outside Information
After voir dire, but before opening statements, the court recessed. During this time, one of the jurors was on the elevator when an employee of the County Attorney's office told another elevator passenger that she was going to the courtroom to watch a "felon in possession" trial. As a result, Fils moved for a mistrial, stating that the juror "likely overheard" the comment. The court denied the motion on the absence of prejudice. Fils argues that the trial court erred in failing to inquire into the impressions and opinions the juror may have formed after hearing the statement on the elevator. We disagree.
We note at the outset that Fils assigns as error only the court's failure to inquire of the juror; he does not assign as error the trial court's denial of his motion for mistrial. However, because the alleged error arose in the context of a motion for a mistrial, we review the trial court's inaction to determine whether it prejudiced Fils. See State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). We determine that it did not.
The Nebraska Supreme Court recently addressed whether a trial court erred in failing to grant a mistrial on the basis that jurors may have observed shackles around the defendant's ankles at the beginning of trial. State v. Dixon, 286 Neb. 334, __ N.W.2d __ (2013). The court did not inquire of the jurors whether they had in fact seen the shackles. On appeal, the Nebraska Supreme Court stated that "'[t]he restraints could serve only to call the jury's attention to what it already knew--that [the defendant] was charged with a serious crime.'" Id. At 342, __ N.W.2d at __, quoting State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009). As a result, the court found that the defendant could not have been prejudiced by the jury's seeing him in leg restraints.
The same holds true in the present case. Fils moved for a mistrial on the basis that a juror "likely overheard" a comment on the elevator that the case involved a felon in possession. But the juror already knew that because the court had advised the jurors of that fact earlier in the day. Furthermore, Fils intended to stipulate to the fact that he was a felon. We fail to see how the juror could have been prejudiced by hearing the statement in the elevator, and the court did not abuse its discretion in failing to make inquiries of the juror.
5. Miscellaneous Arguments
We note that Fils argues in his brief that his counsel ineffectively assisted him in failing to call Clifton as a witness and that the trial court erred in failing to instruct the jury on resisting arrest. He did not assign as error ineffective assistance of counsel or erroneous jury instructions. In order to be considered by an appellate court, an error must be both specifically assigned and argued in the brief of the party asserting the error. J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013). Because Fils did not assign either of these alleged errors, we do not address either argument on appeal.
The evidence was sufficient to convict Fils on the charges of resisting arrest and making terroristic threats. Furthermore, the trial court did not err in denying Fils' motions to suppress or in failing to inquire into the impressions formed by jurors after exposure to outside information. Accordingly, Fils' assignments of error are without merit and we affirm the decision of the trial court.