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
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, which an appellate
court reviews independently of the lower court's
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.
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.
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
___. A failure in the ministerial act of returning and filing
a search warrant does not void the warrant.
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.
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
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
Due Process: Police Officers and Sheriffs:
Identification Procedures. Due process concerns
arise when law enforcement officers use unnecessarily
suggestive means to procure an identification.
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
___: ___: ___. Identification evidence must be screened for
reliability pretrial whenever it is obtained via
unnecessarily suggestive procedures arranged by law
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.
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.
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
___: ___. 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.
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
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.
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.
___: ___. 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
___: ___. 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.
Effectiveness of Counsel: Presumptions. When
considering whether trial counsel's performance was
deficient, there is a strong presumption that counsel acted
from the District Court for Douglas County: Timothy P. Burns,
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Neb. 913] Kelch, J.
NATURE OF CASE
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.
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.
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.
Night of Shootings
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
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.''
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."
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.
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.
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.
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.
was taken to a hospital for treatment. As she was being
transported to an ambulance, she saw that the white Impala
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.
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.
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.
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.
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.
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.
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
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.
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.
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."
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.
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.
ultimately testified that he shot King and Hassell in
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 ...