Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Hill

Supreme Court of Nebraska

January 19, 2018

State of Nebraska, appellee,
v.
Teon D. Hill, appellant.

         1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the appellate court will uphold the trial court's findings of fact unless they are clearly wrong, but will reach a conclusion independent of that reached by the trial court with regard to questions of law.

         2. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

         3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

         4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.

         5. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, 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.

         6. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.

         7.[298 Neb. 676] ___: ___. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.

         8. ___: ___. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision.

         9. Criminal Law: Trial: Prosecuting Attorneys. Prosecutors have a duty to conduct criminal trials in a manner that provides the accused with a fair and impartial trial.

         10. ___: ___: ___. A prosecutor's improper comments during closing argument can require reversal of a conviction if the comments prejudiced the defendant's rights in obtaining a fair trial.

         11. Trial: Prosecuting Attorneys: Appeal and Error. In determining whether a prosecutor's conduct was prejudicial, an appellate court ordinarily looks to the cumulative effect of the improprieties, the strength of the evidence against the defendant, and whether the district court took any curative action.

         12. Trial: Prosecuting Attorneys: Jury Instructions: Appeal and Error. Not every variance between a prosecutor's advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given and the remarks are not crucial to the State's case.

         13. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.

         14. Effectiveness of Counsel: Proof: Appeal and Error. In order to show ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show, first, that counsel was deficient and, second, that the deficient performance actually caused prejudice to the defendant's case.

         15. Effectiveness of Counsel: Proof: Presumptions: Appeal and Error. The two prongs of the ineffective assistance of counsel test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel's actions were reasonable.

         16. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. The defendant must prove that the alleged [298 Neb. 677] error actually prejudiced him or her, rather than creating only the possibility of prejudice.

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

          Gregory A. Pivovar and Jeff T. Courtney, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

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

          HEAVICAN, C.J.

         I. INTRODUCTION

         On December 10, 2013, Virgil Dunn was fatally shot two blocks north of the Spencer Street housing projects in Omaha, Nebraska, in what appeared to be a robbery. On June 4, 2014, Teon D. Hill was charged in Dunn's death.

         On February 24, 2016, a jury found Hill guilty of first degree murder and two counts of possession of a deadly weapon by a prohibited person. Hill was found not guilty of use of a deadly weapon (firearm) to commit a felony. On April 28, Hill was sentenced to life imprisonment on the murder conviction and 15 to 20 years' imprisonment on each conviction of possession of a deadly weapon. The latter two sentences were ordered to be served concurrently to each other and consecutively to the life sentence. Hill appeals. We affirm.

         II. BACKGROUND

         1. Factual Background (a) Homicide A December 10, 2013, surveillance video shows Dunn making a purchase at a liquor store at 30th and Pinkney Streets in Omaha at approximately 9:54 p.m. The purchase was placed in a white plastic bag. Surveillance video indicates [298 Neb. 678] that Dunn then walked toward 28th Avenue. At approximately 10 p.m., a gunshot detection system notified the Omaha Police Department of six shots fired in the area. Officers were dispatched immediately and found Dunn wounded in front of a residence located on North 28th Avenue. Dunn no longer had the plastic bag or his wallet. A baseball cap was lying on the ground approximately 50 feet from Dunn's body; Dunn had not been wearing a baseball cap in the surveillance video. Dunn was taken to the hospital, where he died of gunshot wounds shortly thereafter. There are several witness accounts in the record, but none of the witnesses actually saw the shooting.

         That night, Randy Nunn was driving a van full of children from daycare at approximately 10:20 p.m. when he heard gunshots. He slowed the van and saw "two guys coming with hoodies." They were both around "five, seven; five, eight.'' One person was wearing a black hoodie, and the other had a "white or grayish hoody." One person was carrying a "white grocery bag, " but it was difficult to see because "[i]t was dark that night." The person carrying the bag "might have had [a baseball hat]." As the two men were approaching him, Nunn "sped up" because he "didn't know if they [were] getting shot at [or] if they were shooting." Nunn looked in his rearview mirror and noticed that one of the men took longer to cross the bridge, because he "probably . . . dropped something." Nunn took the children home and told his girlfriend what he had seen. Nunn's girlfriend then called the police.

         Raul Francia testified that he was at home watching television with his brother when, "just before 10 p.m., " he "heard like five, six shots." Francia opened the front door, walked outside, and "saw a guy running ... to the projects." The man was "maybe six-foot tall, " "African-American, " and wearing "a black hoody or a black jacket" and "a hat maybe."

         (b) Arrest

         On February 12, 2014, Metro Area Fugitive Task Force officers were conducting surveillance in the area of the [298 Neb. 679] Spencer Street housing projects in Omaha, near the location of the December 10, 2013, shooting. Officers were attempting to locate a wanted fugitive, Charles Toles. Toles was described as an "African-American male, five, seven to five, nine; a hundred and sixty pounds." Officers "had been receiving tips that he was frequenting the Spencer West Housing Projects area."

         Omaha police officer Jeffrey Gassaway, a member of the task force, testified that while conducting surveillance, he observed a "Ford Taurus driving slowly" with a "black male in the passenger seat who matched the general physical description of Toles, " and a female driver. In fact, Hill, and not Toles, was the passenger in the Taurus. Gassaway asked U.S. Marshal Rovance Lewis, another member of the task force, to also follow the Taurus. Gassaway noticed that the Taurus accelerated as the officers began following it, and "the driver went through the stop sign." The driver of the Taurus drove in a "big square" and violated the stop sign at each corner by failing to come to a complete stop. Because the driver violated "at least six traffic control devices, " Gassaway activated his vehicle's emergency lights and pulled over the Taurus at 30th and Evans Streets. The driver of the Taurus did not initially pull over in response to the activation of the emergency lights. Gassaway testified that the driver was "actively fleeing from" him and continued to make several turns, but pulled over eventually.

         Gassaway and Lewis approached the Taurus simultaneously. As Gassaway approached, he "saw [Hill] reach down briefly." Based on his training and experience, this movement caused Gassaway concern, because "maybe [Hill] was concealing contraband or a weapon." Hill exited the Taurus with his hands up, and Gassaway "was 100 percent positive that it was not . . . Toles." When Gassaway observed Hill step out of the car, Gassaway "told him keep your hands in the air, and . . . Lewis approached him and took physical hold of him and just escorted him back to the back of the car." Hill disputes that he exited the Taurus voluntarily and contends that the [298 Neb. 680] officers "removed [Hill] from the car."[1] Gassaway testified that he "felt that we needed to investigate further based on why this vehicle was fleeing from us and violating traffic control devices." Gassaway proceeded to ask the driver for her identification, driver's license, and vehicle registration. Gassaway observed that there was an infant in the back seat of the Taurus and that the driver was "extremely nervous and agitated, " repeatedly asking if she could call her mother.

         Gassaway asked the driver if she would give the officers "permission to search the vehicle, and she did." Gassaway "walked over immediately to the area where . . . Hill exited, and looked inside the vehicle underneath the seat and saw a handgun." Gassaway left the handgun in place and called the crime laboratory to photograph and collect the handgun. The handgun had six live cartridges in the cylinder. A box with live ammunition and a magazine were recovered from a black purse that was also in the vehicle. However, the handgun was a type of weapon that did not require a magazine for reloading, and the investigator determined that the magazine in the black purse "would belong to something separate" from the handgun found under the seat. Gassaway then requested the other officers who had arrived to place Hill under arrest for possession of a firearm.

         (c) Baseball Cap

         An Omaha police officer testified that he was dispatched to the location of Dunn's shooting on December 10, 2013, and arrived within "one to two minutes" of dispatch. As the officer was heading north on 28th Avenue from Bristol Street, he "observed something in the street, which, as we got closer, appeared to be a red baseball cap." The cap was "in the middle of the Street on North 28th Avenue . . . south of the residence located [on] North 28th Avenue" and about 50 feet from Dunn's body.

          [298 Neb. 681] Melissa Helligso, a forensic DNA analyst, swabbed the inside of the cap for DNA evidence. She swabbed two different areas: inside the headband area of the cap and inside the front area of the cap. Helligso testified that she utilized "methodology and procedure that includes PCR - STR [polymerase chain reaction short tandem repeat] type of work [that] has been accredited and certified through the ASCLD [American Society of Crime Laboratory Directors] and also subject . . . to peer review." For inside the headband area, Helligso "was able to determine that the major DNA profile matches . . . Hill at all of the major alleles obtained; therefore, he's not excluded as the major contributor of the DNA tested." Helligso further stated:

The probability of an unrelated individual matching the major DNA profile from the specimen, given that . . . Hill expresses this profile, is 1 in 1.94 quintillion, which is 10 with 18 zeros for Caucasians; 1 in 1.94 quadrillion, which is 15 zeros, for African-Americans; and 1 in 26.0 quadrillion for American Hispanics.

         In regard to the front area of the cap, Helligso similarly "was able to find that [Hill] was not excluded as the major contributor to the DNA tested." Helligso stated:

The probability that an unrelated individual matching the major DNA profile from this specimen, given that . . . Hill expresses this profile, is ... 1 in 802 sextillion, which is 21 zeros for Caucasians; 1 in 391 quintillion, which is 18 zeros for African-Americans; and 1 in 3.78 sextillion for American Hispanics.

         (d) Spent Projectile and Jeans

         A spent projectile was found within the fabric of Dunn's jacket. Helligso tested a swab of the projectile and determined that a DNA profile consistent with a single male individual was present. Helligso was able to determine that "Dunn is not excluded as the source of the DNA tested." The probability of an unrelated individual matching the DNA profile from the spent projectile, given that Dunn expresses this [298 Neb. 682] DNA profile, "is 1 in 344 quintillion for Caucasians, 1 in 108 quintillion for African-Americans, and 1 in 68.0 quintillion for American Hispanics." The spent projectile was thus presumably shot into Dunn and caught in his jacket upon exiting his body. A crime laboratory technician for the forensic investigations services with the Omaha Police Department testified that based on her analysis of the spent projectile at the crime scene and a test fire from the handgun found in the Taurus, the handgun found under Hill's seat fired the spent projectile found in Dunn's jacket.

         Helligso performed DNA analysis on a swab of the inside right front pocket of the jeans. Investigators swabbed the inside of Dunn's front right pocket, because Dunn was found without his wallet and investigators suspected that the shooter took the wallet from this pocket. The DNA test "generated a profile that was consistent with a mixture of at least three individuals." Dunn's DNA matched a partial profile within the major mixture of the profile, while the results were inconclusive as to Hill because his profile was not present in at least half of the loci generated in the mixture.

         (e) Handgun and Live Ammunition Rounds

         Because there were no fingerprints on the handgun found under Hill's seat, DNA testing was ordered to confirm that Hill was in possession of the firearm used to shoot Dunn. Helligso analyzed a swab of the handgun for DNA and found that "there was a mixture of at least three individuals" and "there was a mixture within the major contributor." Helligso found that "Hill matches a full profile within the major mixture DNA profile, therefore, . . . Hill is not excluded as a major contributor to the DNA tested." Thus, "[t]he probability of a random individual matching a major DNA profile . . . given that . . . Hill expresses this profile, is 1 in 7.05 million for Caucasians, 1 in 2.97 million for African-Americans, and 1 in 7.70 million for American Hispanics."

          [298 Neb. 683] Helligso also tested a swab taken of the six live ammunition rounds found in the handgun. Helligso "detected a mixture of at least two people" and "was able to determine a major contributor." Helligso found that Hill "was in 14 of the loci out of 15 of the major mixture, therefore, he's not excluded as a major profile contributor to the DNA tested." Helligso stated that "[t]he probability of a random individual matching a partial major DNA profile from this specimen, given that . . . Hill expresses this profile, is 1 in 251 million for Caucasians, 1 in 46.9 million for African-Americans, and 1 in 47.0 million for American Hispanics."

         2. Procedural Background

         On June 4, 2014, Hill was charged with count I, murder in the first degree; count II, use of a deadly weapon (firearm) to commit a felony; and counts III and IV, possession of a deadly weapon by a prohibited person. On June 5, Hill filed a plea in abatement. On August 21, following a hearing, the district court overruled Hill's plea in abatement.

         On January 27, 2015, Hill filed a motion to suppress and a motion in limine. In the motion to suppress, Hill argued that the officers did not have probable cause to stop the vehicle and that the search of Hill's person and the vehicle was improper. Hill argued that the fruits of such search, namely the handgun and the live ammunition rounds, were inadmissible. In the motion in limine, Hill argued that the DNA sample taken from him was obtained without a valid warrant based on probable cause, without a valid court order, and without voluntary consent. Hill also contended that Helligso, the State's DNA witness, did not qualify as an expert and that the reasoning and methodology she used did not meet the requirements for admissibility

         On September 8, 2015, the district court overruled Hill's motion to suppress and motion in limine. In its order, the court found that (1) police had probable cause to stop the vehicle after observing multiple traffic violations; (2) Hill, as a passenger in the vehicle, did not have standing to challenge the [298 Neb. 684] search, and even if he had standing, the driver consented to the search; and (3) Hill's DaubertlSchafersman[2] challenge to the introduction of DNA evidence was without merit.

         At the close of the State's case on February 23, 2016, Hill made a motion to dismiss, which the court overruled. On February 24, the jury found Hill guilty of murder in the first degree and guilty of both counts of possession of a deadly weapon by a prohibited person. However, the jury found Hill not guilty of use of a deadly weapon to commit a felony. On April 28, Hill was sentenced to life imprisonment on the murder conviction, and 15 to 20 years' imprisonment on each conviction of possession by a prohibited person, to be served concurrently to each other and consecutively to the life sentence. Hill appeals.

         III. ASSIGNMENTS OF ERROR

         Hill assigns, restated, that the district court erred in (1) overruling Hill's motion to suppress, (2) overruling Hill's motion in limine, (3) allowing the State's counsel in rebuttal closing arguments to argue facts not in evidence, (4) failing to find that Hill was denied effective assistance of counsel, and (5) overruling Hill's motion to dismiss and motion for directed verdict.

         IV. STANDARD OF REVIEW

         In determining the correctness of a trial court's ruling on a motion to suppress, the appellate court will uphold the trial court's findings of fact unless they are clearly wrong, but will reach a conclusion independent of that reached by the trial court with regard to questions of law.[3]

         The standard for reviewing the admissibility of expert testimony is abuse of discretion.[4]

          [298 Neb. 685] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.[5] Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.[6]

         Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, 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.[7]

         Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.[8] When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.[9] With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, [10] an appellate court reviews such legal determinations independently of the lower court's decision.[11]

         [298 Neb. 686] V. ANALYSIS

         1. Motion to Suppress

         Hill argues that the district court erred in overruling the motion to suppress because "[t]here was no probable cause fo[r] the stop, nor any reasonable suspicion" and "the allegations of infractions were a pretext."[12] The State argues that the district court correctly denied Hill's motion to suppress because the officer had probable cause to believe that a traffic violation had occurred. The State contends that the officers "observed multiple traffic violations before stopping the white Taurus."[13] The district court overruled the motion to suppress, finding that the "police had probable cause to stop the vehicle after observing multiple traffic violations."

         In Whren v. United States, [14] officers became suspicious of a vehicle waiting at a stop sign and observed the vehicle turn without signaling and speed off at an "'unreasonable'" speed. The officers pulled over the vehicle, approached, and observed plastic bags of what appeared to be crack cocaine. The petitioners asserted that the stop was not supported by reasonable suspicion or probable cause, because the "ground for approaching the vehicle-to give the driver a warning concerning traffic violations-was pretextual."[15] The U.S. Supreme Court stated that "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."[16] The Court then held that "the officers had probable cause to believe that petitioners had violated the traffic code"[17] and that "[s]ubjective [298 Neb. 687] intentions play no role in ordinary, probable-cause Fourth Amendment analysis."[18]

         In State v. Dallmann, [19] we addressed a defendant's contention that officers "had decided, without probable cause, to follow and stop" the defendant and used the defendant's subsequent traffic violation as "a pretext to obtain consent to search the vehicle." We rejected that argument, holding that "a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle."[20] We further stated that "[i]f an officer has probable cause to stop a violator, the stop is objectively reasonable, and any ulterior motivation on the officer's part is irrelevant."[21]

         Gassaway and Lewis testified that they observed the Taurus fail to stop at multiple stop signs and fail to signal turns. Hill attempts to distinguish this case from Whren by arguing that the officers "made the decision to initiate a traffic stop" by radioing the other officers before witnessing a traffic violation.[22] Hill appears to want this court to take Gassaway's and Lewis' subjective intentions into account, but this court must interpret the U.S. Supreme Court's decision in Whren and conclude, as it did in Dallman, that the officers' subjective intentions are irrelevant in the probable cause analysis. Once the officers observed the traffic violations, they had sufficient probable cause to stop the vehicle.

         We note that Hill cites State v. Van Ackeren[23] and U.S. v. Crawford[24] for the proposition that "the officers were not justified in conducting an investigative stop of the Ford Taurus, " because the "officers did not present any specific or articulable [298 Neb. 688] facts which tend to show that they had reasonable suspicion that . . . Hill had or was committing a crime, and were therefore not justified in conducting the stop."[25] Here, as discussed above, the officers witnessed the driver of the vehicle commit several traffic violations and they subsequently initiated a traffic stop. Based on their observations of traffic violations, the officers had probable cause to stop the vehicle. Therefore, Van Ackeren and Crawford are inapplicable.

         Next, we address Hill's contention that by searching the vehicle, the officers "went beyond the scope of a limited Terry Stop."[26] In State v. Konfrst, [27] we held that "[t]he right to be free from unreasonable searches and seizures may be waived by the consent of the citizen." We explained:

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.[28]

         Gassaway testified that he asked the driver of the vehicle if she would give the officers "permission to search the vehicle, and she did." As someone who "possessed common authority over" the vehicle, the driver could provide voluntary consent to search the premises.[29] Any right that Hill possessed to be free from unreasonable search of the area under the passenger's seat was waived by the driver's consent. Therefore, we find that there was no Fourth Amendment violation in conducting the search.

         [298 Neb. 689] Finally, we need not address Hill's contention that the search was unreasonable because the officers lacked probable cause to arrest him and search the vehicle incident to his arrest. Regardless of Hill's arrest, the driver consented to the search of her vehicle. The handgun Hill wishes to suppress was found in the vehicle pursuant to that consent.

         We find that the district court did not err in overruling Hill's motion to suppress, because the search did not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.