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State v. Fils

Court of Appeals of Nebraska

August 27, 2013

State of Nebraska, appellee,
Shelton W. Fils, appellant.


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.


Riedmann, Judge.


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 ...

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