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State v. Blair

Supreme Court of Nebraska

June 29, 2018

State of Nebraska, Appellee,
v.
Kenneth W. Blair, Appellant.

         1. Criminal Law: Rules of Evidence: Pretrial Procedure: Appeal and Error. The decision whether to reveal the identity of a confidential informant is controlled by Neb. Rev. Stat. § 27-510 (Reissue 2016), and judicial discretion is involved only to the extent § 27-510 makes discretion a factor in determining that question. Where § 27-510 commits a question at issue to the discretion of the trial court, an appellate court reviews the trial court's determination for an abuse of discretion.

         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. Trial: Evidence. Whether there is sufficient foundation evidence for the admission of physical evidence must necessarily be determined by the trial court on a case-by-case basis.

         4. Trial: Evidence: Appeal and Error. A trial court's determination of the admissibility of physical evidence will not ordinarily be overturned except for an abuse of discretion.

         5. Criminal Law: Rules of Evidence: Pretrial Procedure: Testimony: Appeal and Error. A ruling made under the initial step of Neb. Rev. Stat. § 27-510(3 Xb) (Reissue 2016), regarding whether an informer may be able to give testimony necessary to a fair determination, requires a court to use its judgment and thus exercise its discretion. An appellate court therefore reviews such a ruling for an abuse of discretion.

          Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge. Affirmed.

          Matthew R. Kahler and Beau G. Finley, of Finley & Kahler Law Firm, P.C., L.L.O., for appellant.

         [300 Neb. 373] Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Schreiner, District Judge.

          MILLER-LERMAN, J.

         NATURE OF CASE

         Kenneth W. Blair appeals his conviction and sentence in the district court for Douglas County for possession of a deadly weapon by a prohibited person. Blair claims on appeal that the district court erred when it overruled his motion to reveal the identity of a confidential informant and when it admitted a gun into evidence over his objection. We affirm Blair's conviction and sentence.

         STATEMENT OF FACTS

         The State filed an information against Blair in which it alleged three counts: possession of a deadly weapon by a prohibited person; possession of a stolen firearm; and manufacturing, distributing, or possessing with intent to distribute a controlled substance, cocaine. The charges against Blair were based on evidence obtained from the execution of a search warrant for Blair's house and for his person. After it found probable cause based on the sworn affidavit and application of Officer Lisa Villwok of the Omaha Police Department, the Douglas County Court issued the search warrant on August 16, 2015. The warrant authorized police to search for and seize items including, inter alia, cocaine and related paraphernalia and records and any firearms and companion equipment relating to such firearms. The affidavit indicated that Villwok obtained much of the information supporting her application from a confidential informant. The search warrant was executed on August 22.

         Prior to trial, Blair filed a motion to suppress evidence obtained from the search. He asserted that Villwok's affidavit did not establish probable cause, because it was "based solely [300 Neb. 374] on statements made by an unnamed confidential informant, with insufficient information regarding his or her reliability, and a complete lack of independent evidence corroborating the statements made by said confidential informant." Blair also filed a motion to reveal the identity of the confidential informant. He asserted that the confidential informant had "provided information to the State and was an actual participant or eye witness to the alleged offenses with which [Blair] is charged in that the confidential informant set up the alleged transaction for which [Blair] has been charged." Blair further asserted that knowledge of the identity of the confidential informant was "necessary to the preparation of the defense herein" and that without such knowledge, he was "unable to adequately prepare a defense of this case and address any informant who apparently has personal knowledge of the events which are the subject of the Information."

         The court held a hearing on the two motions on June 14, 2016. Blair asked the court to take up the two motions together, because the matters were intertwined and because Villwok was the sole witness as to both matters. Shortly before the hearing started, on the State's motion, the court dismissed without prejudice the charge of manufacturing, distributing, or possessing with intent to distribute a controlled substance, cocaine. This left two charges for trial: (1) possession of a deadly weapon by a prohibited person and (2) possession of a stolen firearm.

         Villwok testified as follows at the hearing on the two motions. Villwok had been a police officer for over 12 years and had been assigned to the "[g]ang unit" for over 5 years. In that assignment, she commonly used confidential informants who provided information regarding investigations involving gangs, narcotics, and gun-related matters. She would attempt to verify the accuracy of information provided by confidential informants before using the information to obtain search warrants. In August 2015, a confidential informant with whom she had previous experience provided Villwok [300 Neb. 375] information regarding Blair. Villwok knew the confidential informant to have provided accurate information, including information that in the past had led to arrests and the seizure of illegal narcotics. The confidential informant told Villwok that Blair was selling cocaine out of his residence; the confidential informant had been inside Blair's residence and had observed Blair using a digital scale to measure cocaine, then packaging the cocaine in a plastic baggie and selling it to an individual in exchange for money. The confidential informant gave Villwok a physical description of Blair and told Villwok where Blair lived.

         Villwok followed up on the physical description by searching a law enforcement database for information regarding Blair and determining that the physical description of Blair in the database was similar to the description given by the confidential informant. Villwok printed a photograph of Blair from the database and showed the photograph to the confidential informant, who identified Blair as the person he had observed selling cocaine. Villwok also had the confidential informant direct her to the area where Blair lived and point out the house in which Blair lived. Villwok determined the address for the house, and by referencing the county assessor's website, she learned that Blair was listed as the owner of the house. Villwok also verified that two local utility companies listed Blair as the person responsible for services at the house. Villwok checked Blair's criminal history and learned that he had been arrested for various offenses, including, inter alia, possessing different types of narcotics, including cocaine, and being a prohibited person in possession of a gun.

         Villwok included the information she obtained from the confidential informant in an affidavit that she used to apply to the county court for a search warrant for Blair's house and his person. The county court issued the search warrant based on Villwok's affidavit. Villwok and other officers executed the search warrant on August 22, 2015. The confidential informant did not accompany Villwok and was not present at Blair's [300 Neb. 376] house during the execution of the search warrant. Villwok found Blair in a bedroom of the house. During the search, another police officer found a Smith & Wesson 9-mm handgun located under a pillow at the head of the bed in the bedroom in which Blair was found. There was no one other than Blair in the room when police officers arrived.

         Based on the gun and other evidence found in the search. Blair was placed under arrest, and Villwok interviewed him at the house. In the interview, Blair "took no claim to the residence" and "denied any knowledge of the gun or of the narcotics located inside of the residence as well as the paraphernalia and the other items."

         Villwok continued to use information from the confidential informant after the search in this case. Villwok testified that the confidential informant had not been charged with a crime and did not have any pending criminal case at the time the informant provided the information regarding Blair but that the confidential informant was paid money for information the informant provided that resulted in an arrest. Villwok testified that the confidential informant had not been promised that he or she would not have to testify in this case but that the confidential ...


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