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State v. Nolt

Supreme Court of Nebraska

February 9, 2018

State of Nebraska, appellee,
Michael A. Nolt, 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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         3. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 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.

         4. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         5. Search and Seizure: Search Warrants. In the absence of a clear showing of prejudice, the failure to comply strictly with postservice statutory requirements will not invalidate a search conducted pursuant to an otherwise valid warrant.

         6. ___: ___. A failure in the ministerial act of returning and filing a search warrant does not void the warrant.

         [298 Neb. 911] 7. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's representation fell below an objective standard of reasonableness and, but for counsel's deficient performance, there is a reasonable probability that the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

         8. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         9. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.

         10. Due Process: Police Officers and Sheriffs: Identification Procedures. Due process concerns arise when law enforcement officers use unnecessarily suggestive means to procure an identification.

         11. Police Officers and Sheriffs: Identification Procedures: Pretrial Procedure. Even when the police use unnecessarily suggestive means to procure an identification, the suppression of the resulting identification is not the inevitable consequence. Instead, the trial judge must screen the evidence for reliability pretrial.

         12. ___: ___: ___. Identification evidence must be screened for reliability pretrial whenever it is obtained via unnecessarily suggestive procedures arranged by law enforcement officers.

         13. Rules of Evidence: Hearsay. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant under the stress of the event.

         14. Rules of Evidence: Hearsay: Proof. The key requirement to the excited utterance exception is spontaneity, which requires a showing that the statements were made without time for conscious reflection.

         15. Rules of Evidence: Hearsay. An excited utterance does not have to be contemporaneous with the exciting event. It may be subsequent to the event if there was not time for the exciting influence to lose its sway. The true test is not when the exclamation was made but whether, under all the circumstances, the declarant was still speaking under the stress of nervous excitement and shock caused by the event.

         16. ___: ___. Facts relevant to whether a statement is an excited utterance include the declarant's manifestation of stress, the declarant's physical condition, and whether the declarant spoke in response to questioning.

         [298 Neb. 912] 17. Rules of Evidence: Hearsay: Police Officers and Sheriffs. Statements made in response to questions from law enforcement in particular do not generally have inherent guarantees of reliability and trustworthiness. But the declarant's answer to a question may still be an excited utterance if the context shows that the statement was made without conscious reflection.

         18. Search and Seizure: Police Officers and Sheriffs: Evidence: Proof. Under the inevitable discovery doctrine, evidence obtained without a valid warrant is nonetheless admissible if the State shows by a preponderance of the evidence that the police would have obtained the disputed evidence by proper police investigation entirely independent of the illegal investigative conduct.

         19. Constitutional Law: Search and Seizure. For purposes of the Fourth Amendment, a search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.

         20. ___: ___. For purposes of the Fourth Amendment, a seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property.

         21. ___: ___. As a general rule, a person has no reasonable expectation of privacy in places readily accessible to the public. 22. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When reviewing a claim of ineffective assistance of counsel, trial counsel is afforded due deference to formulate trial strategy and tactics, and an appellate court will not second-guess reasonable strategic decisions by counsel.

         23. Effectiveness of Counsel: Presumptions. When considering whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably.

         Appeal from the District Court for Douglas County: Timothy P. Burns, Judge.

          Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

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

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

         [298 Neb. 913] Kelch, J.

         I. NATURE OF CASE

         After a jury trial, Michael A. Nolt was convicted of first degree murder, manslaughter, two counts of use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Nolt appeals his convictions, alleging that evidence obtained pursuant to an alleged invalid warrant should have been excluded. Nolt also alleges three ineffective assistance of counsel claims.

         II. FACTS

         At around 2:11 a.m., on October 10, 2015, Omaha police received a report of a shooting at a residence in the northwest precinct of Omaha, Nebraska. After knocking and receiving no response, police entered the residence and immediately discovered the motionless, wounded body of Aurelius Hassell lying on the couch with his sweatpants pulled down to his knees. They then heard a female voice coming from down the hallway and found Tommynique Valentine, who advised them that she had been shot in the leg. In another bedroom, six children were found unharmed. Officers then asked Valentine if there was anyone else in the house, and she told them about another victim, Malquan King, in a bedroom closet. When an officer went to check on King, he was motionless and not breathing. King and Hassell were later pronounced dead. In connection with the shooting, Nolt was charged with first degree murder, attempted murder, and use of a firearm to commit a felony, among other charges.

         At trial, the State called a number of witnesses. Valentine testified about the events that occurred at her house on the night of the shootings, and officers testified about the investigation that followed. The State also introduced redacted versions of telephone calls that Nolt made to his mother while in jail. After the State rested, Nolt testified in his own defense.

         1. Night of Shootings

         At trial, Valentine testified about the events that occurred at her house the night of the shootings. She testified that at the [298 Neb. 914] time of the incident, she was in a relationship with King. King was coming back to Omaha after traveling with his friend. Hassell, and another man whom Valentine had never met. According to Valentine, King had referred to this latter person as his '"white homeboy.'"

         Valentine and King had planned for King to stay the night at Valentine's house that night. Valentine had been in contact with him before she fell asleep around 10 p.m. on October 9, 2015. At approximately 2 a.m., the next day, she awoke to the sound of the doorbell. King, Hassell, and the white male were outside, and a white Chevrolet Impala was parked in the driveway. Valentine let King and Hassell into the house, and they talked in the front room for a few minutes before Hassell went back outside. Hassell then came back in and asked if the white male could use the bathroom. Valentine said, "Sure.''

         According to Valentine, she walked back to her bedroom with King while Hassell stayed in the front room. Valentine testified that Hassell was sitting on the couch and was "on his phone." When Valentine got to her bedroom, she discovered her 3-year-old daughter was asleep on the bed, so she picked her daughter up and carried her to a bedroom where other children were sleeping. As Valentine carried her daughter down the hall, she crossed paths with the white male who was on his way to the bathroom. The white male nodded his head, and Valentine said, "[H]ello."

         Valentine testified that she got "a good look" at the white male. She described him as "clean cut" and wearing glasses, a white long-sleeved dress shirt, khaki pants, and black dress shoes.

         While Valentine was putting her daughter to bed, King got ready for bed. According to Valentine, King had taken off his clothes and placed them in her hamper. (The clothes were later found folded on the bed.) Valentine sat on the bed and waited for the white male and Hassell to leave so that she could turn off the lights and lock her door.

         A moment later, the bathroom door opened and Valentine heard "pop, pop, popping sounds." Unsure of what the sound [298 Neb. 915] was, she told King to go check it out. Instead, King asked Valentine if she had a gun. Valentine then became worried, and she went and hid in her closet. King was on his way to hide in the closet with Valentine when Valentine heard louder popping noises and saw King's face change. King had been shot.

         Valentine did not see the shooter, but heard the sound of dress shoes walking away down the hall. She then heard more shots fired. Next, Valentine heard the sound of dress shoes walking back to the bedroom and heard a voice say, "Talk to me, Talk to me. Are you okay?" Valentine did not make a sound. After that, additional shots were fired and Valentine was struck in the leg. Valentine then heard the sound of shoes again and heard the front door open and close. After she heard the front door close, Valentine came out of the closet, grabbed her cell phone from the nightstand, and went back into the closet to call the 911 emergency dispatch service.

         Valentine was taken to a hospital for treatment. As she was being transported to an ambulance, she saw that the white Impala was gone.

         2. Investigation

         Omaha police officers testified at trial about the investigation that followed the shootings. When officers arrived at the scene, they found Hassell deceased in the living room and King deceased in the bedroom. They also found a number of gun shells throughout the house. Photographs of the scene were entered into evidence.

         The photographs show Hassell lying on the couch with his feet on the floor and his hands curled up near his face. One cell phone was on the ground between Hassell's feet, and another one was on the couch. King was found lying just inside Valentine's bedroom closet. Two cell phones were found in the bedroom, one on the bed and one on the ground near the bedroom door.

         King's cell phone contained information that eventually led police to Nolt. From King's cell phone, a detective in the [298 Neb. 916] digital forensics unit was able to retrieve photographs and the Global Positioning System (GPS) coordinates of where the photographs were taken. One of the photographs was a "selfie" of King-a photograph King had taken of himself, a week before his death. Nolt was in the background. From the GPS coordinates imbedded in the photograph's file, the detective determined that the photograph was taken at a hotel in Fort Wayne, Indiana. An officer investigating the case contacted the hotel's manager. The officer asked the manager if either King or Hassell had rented a room there. The manager indicated that neither had. Later, however, the manager called the officer back to provide further information that she felt might be relevant to their investigation, including Nolt's name. The manager also provided officers with still photographs from the hotel's surveillance video showing Nolt talking to front desk staff.

         Nolt was featured in another photograph on King's cell phone. The GPS information imbedded in that photograph indicated that it was taken 1 week before King's death at a car rental company in Fort Wayne.

         As part of their investigation, officers spoke to a couple of King's friends. One of these friends, Alejandro Luna, testified at trial that Nolt was traveling with King and Hassell because they could not get a rental car in their name, but Nolt got one for them in his name.

         After police learned Nolt's name and other details about the rental vehicle from the car rental company, they sought and received a search warrant for OnStar Corporation (OnStar), which services GPS devices in vehicles, to provide the rental car's GPS data to police. The Impala was tracked to a residence in Mesa, Arizona. Information regarding the case was relayed to Mesa police, and a local task force went to the residence. Members of the task force saw Nolt and another male leave the residence in the Impala, and they followed the two men to a nearby discount department store. Nolt went into the store and purchased .40-caliber ammunition. After Nolt returned to [298 Neb. 917] the Impala, the task force took Nolt into custody in the store parking lot.

         Later that day, police executed a search warrant at the Mesa residence. They found a black duffelbag containing items belonging to Nolt, including an Indiana driver's license, an Arizona identification card, and a .40-caliber Smith & Wesson handgun, the same caliber of firearm used to kill King and Hassell.

         Nolt's cell phone records were also subpoenaed as part of the investigation. An officer who analyzed the records testified that the records show that Nolt placed a call from Walnut, Iowa, at 3:14 a.m., approximately 1 hour after the shooting. Later that morning, another call was placed from Kansas City, and at 6:30 p.m., in the Denver, Colorado, area. The next day calls were made from Santa Fe and Albuquerque, New Mexico, and Phoenix, Arizona.

         3. Jail Calls

         The State offered as exhibits recordings of three telephone calls Nolt made to his mother while in jail. Redacted versions of the recordings were admitted into evidence.

         In the first call, Nolt and his mother were discussing where his glasses were. His mother told him that the detective told her that they did not have Nolt's glasses. Nolt told her, "They got all my glasses." He told her that one pair of glasses was "wherever the gun was at" and that "[m]y glasses were in my suitcase."

         In the second call, Nolt told his mother, "Hey, you know what some guys were saying?" He said, "they say, 'You were one shot away, '" and he laughed. His mother asked him, "What's that mean?" Nolt replied that "[Valentine] should have been killed, too." Nolt laughed again. Then his mother laughed and said, "You know I said the same thing? I said . . . 'Your aim ain't very good, is it?' Didn't you have your glasses on you . . . ?" Nolt and his mother laughed. His mother said, "Right?" Nolt laughed again and said, "Oh, I don't know anything about what you're talking about." They both laughed again.

         [298 Neb. 918] In the third call, Nolt told his mother, "[Valentine] was so mad at me, you would think I killed her boyfriend or something." Nolt then laughed.

         4. Nolt's Testimony

         Nolt ultimately testified that he shot King and Hassell in self-defense.

         Nolt testified that a couple of weeks before the incident in Omaha, King, Hassell, and Luna were shot at outside of an apartment building by "a tall black guy." At ...

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