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State v. Baker

Supreme Court of Nebraska

November 17, 2017

State of Nebraska, appellee,
v.
Harold W. Baker, appellant.

         1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Motions to Suppress: Pretrial Procedure: Trial: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.

         3. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

         4. Search Warrants: Probable Cause. The particularity requirement for search warrants is distinct from, but closely related to, the requirement that a warrant be supported by probable cause.

         5. Search Warrants: Probable Cause: Evidence. A search warrant may be sufficiently particular even though it describes the items to be seized in broad or generic terms if the description is as particular as the supporting evidence will allow, but the broader the scope of a warrant, the stronger the evidentiary showing must be to establish probable cause.

         6. Search and Seizure: Search Warrants. The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another.

          [298 Neb. 217] 7. Search Warrants: Police Officers and Sheriffs. A search warrant must be sufficiently particular to prevent an officer from having unlimited or unreasonably broad discretion in determining what items to seize.

         8. Constitutional Law: Search Warrants: Police Officers and Sheriffs. To satisfy the particularity requirement of the Fourth Amendment, a search warrant must be sufficiently definite to enable the searching officers to identify the property authorized to be seized.

         9. Evidence. A court must consider whether a statement made by a third party admitted to give context to a party's statement is relevant.

         10. Criminal Law: Evidence. To evaluate the relevance of a third party's statement for the purpose of providing context, a court must compare the probative value of the defendant's statement with and without the added context; if the third-party statement makes the defendant's statement any more probative, the third-party statement is itself relevant.

         11. Evidence. When analyzing evidence under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), courts not only consider the risk of unfair prejudice or other dangers the evidence carries, but weigh those dangers against the probative value of the evidence, determining whether the former substantially outweighs the latter.

         Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Wright, J.

         NATURE OF CASE

         Harold W. Baker was found guilty by a jury of his peers of murdering Jermaine J. Richey and Derek L. Johnson and attempting to murder Demetrion A. Washington and Lamar A. Nedd. He was sentenced by the court to life imprisonment on each of the two first degree murder convictions, 30 to 40 years' imprisonment on each of the two attempted first degree murder convictions, and 25 to 30 years' imprisonment on each [298 Neb. 218] of the four use of a firearm to commit a felony convictions. Baker appeals.

         At issue is whether the search warrant for Baker's residence was unconstitutional because it lacked particularity by authorizing the police to search for "[a]ny and all" firearms in his residence. Also at issue is whether evidence found during the course of and as a result of the search should be suppressed if the warrant were found to be invalid. Baker also claims that the trial court erred by admitting a recording of a telephone conversation that he made to his ex-girlfriend from jail. Because we conclude that the search warrant was sufficiently particular and that the trial court's admission of the telephone conversation was not an abuse of discretion, we affirm.

         BACKGROUND

         Baker was charged with eight counts: count I, first degree murder, a Class IA felony, for the killing of Richey; count II, use of a firearm to commit a felony, a Class IC felony; count III, first degree murder, a Class IA felony, for the killing of Johnson; count IV, use of a firearm to commit a felony, a Class IC felony; count V, attempted first degree murder, a Class II felony, for the attempted murder of Washington; count VI, use of a firearm to commit a felony, a Class IC felony; count VII, attempted first degree murder, a Class II felony, for the attempted murder of Nedd; and count VIII, use of a firearm to commit a felony, a Class IC felony.

         In July 2016, Baker was tried before a jury in the Douglas County District Court. The jury found him guilty on all counts. Baker was sentenced to life imprisonment on each of the two first degree murder convictions, 30 to 40 years' imprisonment on each of the two attempted first degree murder convictions, and 25 to 30 years' imprisonment on each of the four use of a firearm to commit a felony convictions. The court ordered that all of the sentences be served consecutively.

         The shooting that led to the deaths of Richey and Johnson occurred outside of an apartment building on Meredith Avenue in Omaha, Nebraska, on December 21, 2014. The building has [298 Neb. 219] entrances on its north and the south sides and parking stalls along its east side. At the time of the shooting, the building was equipped with three security cameras: one monitoring an office inside the building, one monitoring the north entrance, and one monitoring the east parking area.

         Prior to the shooting, a blue Crown Victoria-the victims' vehicle-pulled into a parking stall on the east side of the apartment building. One of the building's security cameras showed a black sport utility vehicle (SUV) subsequently park in the east parking area, two parking stalls to the south of the Crown Victoria. At this time, the occupants of the Crown Victoria exited the vehicle and appeared to follow the SUV's occupants into the south entrance of the building.

         The security camera on the north entrance to the apartment building showed that at around 5:05 p.m., two individuals walked into the building, with the door opened for them from the inside by a third individual. Neither was openly carrying a rifle, but the individual later identified as Baker walked up the steps in an odd stiff-legged manner, which the prosecution argued at trial was because he was concealing a rifle in his pants.

         At around 5:07 p.m., the security camera footage of the east parking area showed the four individuals from the Crown Victoria returning to their vehicle from the apartment building's south entrance. As these four entered the vehicle, two individuals, similar in appearance to the two individuals that had recently entered the north entrance, also came to the east parking area from the area of the south entrance. These two stood waiting behind the nearby SUV while the four other individuals entered the Crown Victoria. One of the two individuals standing waiting pulled out a rifle, held it up to his shoulder, stepped out from behind the SUV, and fired multiple shots into the Crown Victoria. The driver of the Crown Victoria, Richey, slumped over in his seat. The front passenger, Johnson, ran out of the vehicle a short distance before grabbing his chest and falling over. The two rear passengers exited the vehicle.

         [298 Neb. 220] Johnson died of a gunshot wound to the heart, and Richey died 16 days later from a gunshot wound to the head. After the shooting, police spoke with Washington, who had also been shot. Washington claimed he did not know the shooter. Nedd was also in the Crown Victoria during the shooting and sustained a small injury on his rib cage from glass fragmentation. Nedd claimed not to know the shooter.

         Police recovered 30 spent ammunition casings at the scene. All of the recovered casings were from .223-caliber cartridges.

         Police obtained a search warrant to search Baker's residence, where he lived with his brother and his brother's family. During the search of Baker's residence, police recovered a blue jacket bearing a distinctive logo and text, similar to the jacket worn by the shooter in the security camera footage, and a .223-caliber semiautomatic rifle with a 30-round magazine containing 18 loaded rounds. Baker was not located at the residence. Police subsequently obtained an arrest warrant for Baker and arrested him.

         Testing of DNA samples taken from the rifle and the jacket showed that Baker was very likely a contributor to both samples. Ballistics testing of the rifle showed that 27 of the 30 casings found at the crime scene had been fired from the rifle found in Baker's residence; 3 of the casings were not suitable for comparison.

         Baker filed a pretrial motion to suppress any and all evidence found as a result of the search of his residence on the basis that the search warrant was not sufficiently particular.

         The search warrant authorized police to search for, among other things: "Any and all unknown make and model firearm(s), to include handguns, rifles, and / or shotguns, along with ammunition, spent projectiles and spent shell casings, and all companion equipment for these firearm(s), including holsters, cleaning kits, sales and/or registration paperwork, and original packaging/boxes."

         The warrant affidavit provided, in addition to a description of the build and clothing of the two individuals seen entering [298 Neb. 221] the building and committing the shooting, the following facts: Police reviewed security camera footage from the Meredith Avenue apartment building. They had received an anonymous tip that Baker had bought a gun from Adren Goynes-Wynn, that Baker used the gun in the shooting, and that Baker returned the gun to Goynes-Wynn, who hid the gun in his mother's apartment at the Meredith Avenue apartment building.

         The affidavit also stated that police had responded to a shooting at another Omaha residence on January 11, 2015, where numerous .223-caliber casings were found. Prior to that shooting, Baker had come to see his ex-girlfriend, Shyanne Clark. Baker became upset when he observed that there was another man in her residence. Baker made a comment to the effect of "'I'm about to shoot shit up, '" after which Clark heard numerous gunshots outside the residence. Clark told police that Baker had admitted to shooting and killing two individuals at the Meredith Avenue apartment building and that she had seen Baker with a rifle in the past. Clark confirmed the location of Baker's residence. Clark identified Baker as one of the individuals seen on the security camera footage entering the Meredith Avenue building just prior to the shooting based on his wearing of the blue jacket bearing the distinctive logo and text and his "tasseled stocking cap, " which she had given him.

         The affidavit also said that shooting victim Washington told police that he observed two individuals in the Meredith Avenue apartment building just before they walked out to the parking lot prior to the shooting. Washington said that he had a brief interaction with one of the parties before exiting the building. Out of a photographic lineup array, Washington identified Baker as one of the individuals and Goynes-Wynn as the other individual.

         At the hearing on Baker's motion to suppress, the only evidence presented as to the types of weapons capable of firing .223-caliber cartridges was the testimony of an Omaha Police Department detective:

[298 Neb. 222] Q. All right. Concerning the [crime] scene investigation, as I understand it, the only - only casings that were observed or recovered were all the same caliber, this 223?
A. That's correct, sir.
Q. All right. And is 223 something that would be consistent with handguns being able to fire, or do you know?
A. Well, primarily it's a rifle cartridge, but there are rifles that are considered pistols or handguns [by] the [Bureau of Alcohol, Tobacco, Firearms and Explosives], and it's just a shortened version of an M-4 or AR-15 styled rifle, but they are considered nowadays to be pistols.
Q. Okay. But they're basically assault weapons?
A. They're assault weapons, yes, sir.

         The trial court overruled Baker's motion to suppress as it related to the search for weapons in his residence, relying on this court's holding in State v. Tyler[1]

         On January 21, 2015, the day that he was arrested, Baker telephoned his ex-girlfriend, Clark, from jail. The call was recorded and played for the jury at Baker's trial. A transcript of the call was given to jurors while the call was played, which transcript Clark had reviewed for accuracy. The most relevant portion of the conversation is as follows:

Baker: Man, that shit was crazy. I'm like. I don't know man. It just, I guess, you know, it's meant to be now. Like, but, I can see if like, like if I did the shit, ya know what I mean, like you know and was running and shit but they try in' to get . . .
Clark: The only thing is, [Baker]. The only thing is . . .
Baker: Just listen. I'm gonna read my charges. Just listen to this dumb ass shit.
[298 Neb. 223] Clark: I know your charges.
Baker: They talking 'bout four counts of first degree ...

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