State v. Houser

• Decision Date: 25 September 1992
• Docket Number: No. S-90-373,S-90-373
• Parties: STATE of Nebraska, Appellee, v. Charles T. HOUSER, Appellant.
• Court: Nebraska Supreme Court

Page 168

490 N.W.2d 168

241 Neb. 525

STATE of Nebraska, Appellee, v. Charles T. HOUSER, Appellant.

No. S-90-373.

Supreme Court of Nebraska.

Sept. 25, 1992.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. When reviewing a motion to suppress, an appellate court will not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings unless they are clearly erroneous.

2. Motions to Suppress: Appeal and Error. In determining the facts at a hearing on a motion to suppress, a trial court is the trier of fact, and an appellate court takes into consideration that the trial court has observed the witnesses.

3. Miranda Rights: Right to Counsel. The purpose of giving a person in custody his rights under Miranda is to inform the individual in custody that he may refuse further interrogation and obtain counsel.

4. Miranda Rights: Right to Counsel: Search and Seizure. Requests made to a defendant by one seeking consent to search the defendant's residence do not constitute further questioning, or the functional equivalent of further questioning, after counsel has been requested by the defendant.

5. Trial: Identification Procedures. In determining the admissibility of identification evidence, the trial court should consider the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

6. Trial: Rules of Evidence: Expert Witnesses. In admitting novel scientific evidence, while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

7. Trial: Rules of Evidence: Expert Witnesses. The Frye test, Frye v. United States, 293 F. 1013 (D.C.Cir.1923), is recognized in Nebraska.

8. Trial: Rules of Evidence: Expert Witnesses. The Frye test is not totally controlling as to the admissibility of novel expert testimony, but is only the first of several criteria that a trial court determines are satisfied before such testimony may be admitted.

9. Trial: Rules of Evidence: Expert Witnesses. DNA testing results can be admissible only if the protocol followed is established according to principles generally accepted in the relevant scientific fields.

10. Trial: Rules of Evidence: Expert Witnesses. In connection with DNA evidence, the trial court is to preliminarily decide, outside the presence of the jury, on the basis of evidence before it: (1) whether the witnesses on the DNA issue are experts in the relevant scientific fields, (2) whether DNA profile testing used in the case under consideration is generally accepted by the relevant scientific communities, (3) whether the method of testing used in the case under consideration is generally accepted as reliable if performed properly, (4) whether the test conducted properly followed the method, (5) whether restriction fragment length polymorphism (RFLP) analysis evidence is more probative than prejudicial under Neb.Rev.Stat. § 27-403 (Reissue 1989), and (6) whether statistical probability evidence interpreting RFLP analysis results is more probative than prejudicial.

Michael Poepsel and, on brief, Donald W. Kleine, of Kleine Law Office, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Marie C. Pawol, Lincoln, for appellee.

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

GRANT, Justice.

Defendant, Charles T. Houser, was charged with first degree murder in the death of Janice Ross Patterson. After a jury trial, defendant was found guilty of second degree murder. He was sentenced to serve 27 years in prison, with credit given for 497 days served in jail prior to sentencing.

Defendant timely appealed and in this court assigns six errors. In view of the fact that we determine that the cause must be remanded for a new trial in connection with the reception of deoxyribonucleic acid (DNA) evidence, we will discuss only the assignments of error which present problems that will arise on the retrial. Other assignments, concerning matters which will not arise on retrial, will not be discussed herein. In the assignments of error with which we are concerned, defendant alleges that the trial court erred (1) in overruling his motion to suppress evidence obtained in a search of defendant's residence, (2) in admitting identification evidence based on a suggestive photographic array, (3) in overruling defendant's motion in limine concerning "evidence of DNA fingerprinting that has not been found sufficiently acceptable or reliable to the scientific community," and (4) in later permitting that evidence to be submitted to the jury at trial.

Viewed in the light most favorable to the State, as required by State v. Davis, 240 Neb. 631, 483 N.W.2d 554 (1992), the record shows the following facts:

At approximately 6 p.m. on Tuesday, September 27, 1988, Omaha police officers were summoned to the house of Charles and Willie Ross to investigate a report that their daughter, 34-year-old Janice Ross Patterson, was missing and had not been seen since the evening of September 26.

At approximately 7 p.m. on September 26, Patterson left the Ross house, where she and her 15-year-old son resided, to visit her boyfriend, defendant Charles T. Houser, who lived in an apartment at 2706 North 75th Street in Omaha. At approximately 10 p.m. on the night of the 26th, defendant called the Ross home and asked to speak with Patterson. Willie Ross told defendant that Patterson was not home. Defendant told Willie Ross that Patterson had left his apartment about 2 hours earlier to go to the grocery store and to the post office downtown.

Police investigation showed that Patterson had not reported to work on the morning of September 27 and that Patterson had not taken her son to a dental appointment on that afternoon.

On September 27, after talking to the Rosses, police went to defendant's apartment to question him. Defendant stated that Patterson had come to his apartment on September 26, that they had had dinner, and that she had left at approximately 10:30 p.m. to go to the grocery store and the post office and to return to her home.

As the officers were leaving defendant's apartment, at approximately 8:45 p.m., they were informed by other officers that Patterson's car had been discovered by Patterson's family in the No Frills grocery store parking lot at 80th and Blondo Streets in Omaha. That location is approximately four blocks from defendant's apartment. At about the same time, defendant received a phone call from Patterson's brother, who stated that Patterson's car had been found. The exterior of the car showed pieces of underbrush in the grille and in the passenger-side door. The front license plate was missing. Patterson's purse and shoes were in the car. There was a pool of blood in the trunk, which also contained an envelope, a large sheet of plastic, and a hammer, all stained with blood.

Defendant drove to the parking lot, and when he arrived police asked if they could question him. During a brief interview at the scene, defendant signed a consent form permitting police to search his car and his apartment. The search of his car revealed nothing of evidentiary value. During the search of defendant's apartment, police took into evidence a receipt from Kentucky Fried Chicken, dated September 26, 1988, at 8:45 p.m.

After the search, defendant agreed to go to the police station with the officers for further questioning. He was not given Miranda warnings at this time. The initial interview at the station lasted approximately 1 hour and was briefly interrupted so that the interrogating detectives, Foxall and Sklenar, could confer with their commander. The interview was resumed shortly, and the officers began by reading defendant his Miranda rights. In this second interview, defendant basically repeated his earlier statements that Patterson had arrived at his apartment between 7:30 and 8 p.m., that they had bought dinner, and that she had left between 10 and 11 p.m. to go to the post office and the grocery store. He denied any involvement in Patterson's disappearance.

At that time defendant had not been advised that he was under arrest. The questioning became more direct. Interrogating officers asked if defendant had killed Patterson. At 2:17 a.m. on September 28, defendant requested an attorney. Police terminated the interview and allowed defendant to use a phone book and an office telephone. Defendant testified that he did not call an attorney because of the late hour.

Defendant was then escorted to the police criminalistics lab, where hair samples and fingernail scrapings were taken. Officer Paul Briese, who was escorting defendant, then asked defendant if he would sign a consent form authorizing a search of defendant's apartment. Briese testified he asked defendant no questions beyond requesting that defendant sign the consent-to-search form. At that time a search warrant was being prepared, and Briese so told defendant. At 4:17 a.m. defendant signed a second consent-to-search form permitting police to search his apartment, on condition that defendant be present during the search.

Defendant then accompanied police to his apartment early on the morning of September 28, but remained in the car while police conducted a 3-hour search of his apartment. There were no signs of a struggle in the apartment, which was neat and clean. Items of clothing and linen were taken into evidence, as well as two couch cushions. Upon conclusion of the search, defendant was released.

On the evening of September 28, Kelly Black, who lived on an acreage near Neola, Iowa, which is...