State v. Bowen, 88-736

• Decision Date: 30 June 1989
• Docket Number: No. 88-736,88-736
• Citation: 232 Neb. 725,442 N.W.2d 209
• Parties: STATE of Nebraska, Appellee, v. Phillip E. BOWEN, Appellant.
• Court: Nebraska Supreme Court

Page 209

442 N.W.2d 209

232 Neb. 725

STATE of Nebraska, Appellee, v. Phillip E. BOWEN, Appellant.

No. 88-736.

Supreme Court of Nebraska.

June 30, 1989.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. At a hearing to suppress evidence, the court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence. In determining a court's ruling as a result of a suppression hearing, the Supreme Court will not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings of fact unless those findings are clearly wrong.

2. Constitutional Law: Search and Seizure: Arrests: Police Officers and Sheriffs. The 4th amendment to the U.S. Constitution, made applicable to the States by the 14th amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest.

3. Search and Seizure: Police Officers and Sheriffs. A warrantless search of a house may be justified when the police have obtained the consent to search from a party who possessed common authority over, or other sufficient relationship to, the premises sought to be inspected.

4. Search and Seizure. The determination of whether a consent to search is voluntarily given is a question of fact, and voluntariness is to be determined from the totality of the circumstances.

5. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of the Supreme Court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Kenneth W. Payne, Alliance, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

Defendant-appellant, Phillip E. Bowen, was convicted by a jury in the district court for Douglas County of murder in the first degree and use of a firearm to commit a felony, in violation of Neb.Rev.Stat. §§ 28-303(2) and 28-1205(1) (Reissue 1985). He was sentenced to life imprisonment on the murder charge and to a consecutive term of 1 to 6 years' imprisonment on the weapons charge.

Defendant timely appealed to this court, alleging the district court erred in overruling his motions to suppress physical evidence and statements and allowing said evidence to be admitted at trial. Defendant further contends that the evidence was insufficient, as a matter of law, to sustain his convictions. We affirm.

The record shows the following. The elderly victim, Mary Jirsak, owned and operated Jirsak's Confectionery, a candy store located at 1418 South 13th Street in Omaha. Jirsak also resided at this address.

On February 18, 1988, at approximately 9:15 a.m., Jirsak was talking on the telephone with her sister, Rose Kojdecki. During their conversation, Jirsak asked Kojdecki to "hold on" because Jirsak had a customer. A few seconds later, Kojdecki heard Jirsak scream loudly and say, "Get out of here. I don't have any money." Kojdecki hung up the telephone and called 911.

Edward Mobley, who operated the welding shop next door to Jirsak's Confectionery, testified that he went to work shortly after 9 a.m. on February 18. As Mobley was walking north on 13th Street, he heard a scream and something that sounded like a "pop." As Mobley continued walking, he saw two men leave the candy store. Both men appeared fairly young, about 18 to 20 years old. One had "long, blondish, ... scraggly hair." The other was wearing an orange stocking cap with eyeholes, which covered most of his face. As he walked past the two men, Mobley noticed that the man wearing the stocking cap was carrying a "Luger-type" handgun against his chest. Mobley realized something had happened and went into his shop and called 911. He then went to Jirsak's Confectionery and saw the victim lying on the floor.

Police officers were dispatched to the scene at 9:31 a.m. and discovered Jirsak's body lying in the doorway of the candy store. An ambulance was summoned. There was a large amount of blood under her head, and a shell casing was discovered just inches from the body. It was later determined that Jirsak died from a single gunshot wound to her head.

During the course of their investigation, the officers searched the candy store and discovered a chair that had been knocked over and the contents of Jirsak's purse scattered on the floor. The officers also discovered some dimes, an envelope that was ripped open, and a piece of a dollar bill on the floor behind a counter. Jirsak's telephone was off the hook.

While the officers were conducting their investigation, Mack Riggs, a 17-year-old neighbor, heard about the shooting and went to Jirsak's Confectionery about 11:30 a.m. After he found out how many men were involved in the shooting and that a .22-caliber weapon had been used, Riggs told Officer Paul Briese that he thought he knew who did it. Riggs then told Briese that 2 weeks prior, defendant had telephoned and asked if Riggs wanted to help defendant rob the candy store. Riggs testified that he had subsequent telephone conversations with defendant and Christopher Bazer 2 days prior to the shooting.

Riggs agreed to show police officers two places where defendant and Bazer might be staying, and then went with the officers in a police cruiser. Based on Riggs' information, the officers first went to defendant's mother's house at 3006 South 17th Street in Omaha, but no one was home. The officers then went to 6708 Pacific Street in Omaha, the home of defendant's sister, Vicki Strunk.

The officers, who did not have an arrest warrant or a search warrant, arrived at Strunk's house at 12:10 p.m. Officers Sklenar and Lenker went to the front door of the house, while Officers Wilson and Ivener went to the back. Sklenar knocked on the front door. Strunk answered and gave permission for the officers to enter the house. When Sklenar asked if defendant was there, Strunk said he was and pointed to the kitchen, where defendant was talking on the telephone. Defendant was placed under arrest.

While Ivener was standing outside the back door of Strunk's house, he saw three or four persons, including one individual who matched Bazer's description, go down to the basement. Ivener then saw all these individuals come back upstairs. At this time, defendant's uncle, Larry Bowen, saw Ivener standing at the back door. Larry Bowen told Ivener that defendant and Bazer were in the house, and Ivener entered the house through the back door. He and another officer went into the basement to search for Bazer, but did not find him. Officers Sklenar, Ivener, Lenker, and Wilson then obtained permission from Strunk to search the house for Bazer. They eventually found Bazer hiding in the rafters of the house.

Officer Briese arrived at the Strunk residence 5 to 7 minutes after Sklenar and entered the house through the back door. Larry Bowen summoned Briese to the basement and directed him to the east wall. Larry Bowen directed Briese's attention to a .22-caliber Luger-type weapon lying on a blue foam mattress and told Briese that the weapon had been covered up by a yellow blanket.

Briese followed Larry Bowen back upstairs and, at 12:27 p.m., advised Sklenar of the location of the gun. Sklenar testified that while Briese was in the basement, Sklenar had been filling out a permission to search form. The form was executed by Vicki Strunk at 12:25 p.m. and authorized Officers Sklenar, Lenker, Briese, Wilson, and Ivener to search her residence at 6708 Pacific.

Defendant was taken to police headquarters and advised of his Miranda rights. He waived his Miranda rights and agreed to talk to Officers Wilson and Lenker about the Jirsak homicide. The questioning began at 2:25 p.m. Defendant told the officers that Bazer had come to Strunk's residence several days before the homicide and that Bazer had a .22-caliber automatic nine-shot handgun on that occasion.

Defendant also stated that on the night of February 17, 1988, he and Bazer talked about robbing a bar in North Omaha. Defendant and Bazer stayed at the Strunk residence on the night of February 17. The next morning, Bazer wanted to see an individual named "Tim" to get $1,500 from a drug transaction "ripoff" in which Bazer and Tim had been involved. Defendant and Bazer called defendant's brother-in-law, Dale Demont, to give them a ride.

Demont picked up defendant and Bazer at 9 a.m. at Strunk's home. When defendant, Bazer, and Demont left the house, defendant was wearing a red and orange stocking cap. Defendant told the officers that they first went to defendant's mother's residence so that defendant could borrow some money from his mother. Defendant then said he wanted to "pick a bone" with Riggs, who had turned defendant in a few days before on a burglary charge in Sarpy County. They drove by Riggs' house but did not stop because Riggs' car was not there.

Defendant then said he wanted to get some candy, so Demont dropped defendant and Bazer off at Jirsak's Confectionery. Defendant stated that Bazer then announced his intent to rob the old lady in the candy store and that defendant tried to talk Bazer out of committing the robbery.

Defendant stated that when he and Bazer walked into the candy store, Jirsak was on the telephone in the back room. Jirsak came to the front of the store, and defendant purchased some licorice and pop. After defendant paid for these items, Jirsak went to the back room to get the pop. Defendant stayed at the front of the store, but Bazer followed Jirsak to the back. Defendant told the officers he saw Bazer pull out a gun and...