State v. Ildefonso
| Decision Date | 05 October 2001 |
| Docket Number | No. S-00-1024.,S-00-1024. |
| Citation | 634 N.W.2d 252,262 Neb. 672 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Arlyn P. ILDEFONSO, Appellant. |
Thomas C. Riley, Douglas County Public Defender, and Leslie E. Cavanaugh, for appellant.
Don Stenberg, Attorney General, and Scott G. Gunem, Omaha, for appellee.
Arlyn P. Ildefonso appeals from his convictions for first degree murder and use of a firearm to commit a felony. Ildefonso was charged with killing Carr Hume on September 13, 1999. After a jury convicted Ildefonso on both charges, he was sentenced to life in prison without parole for first degree murder and to a consecutive sentence of 40 to 45 years in prison for the use of a firearm. He asserts on appeal that his motion to suppress should have been granted and that he received ineffective assistance of counsel at trial.
A trial court's ruling on a motion to suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001), cert. denied ___ U.S. ___, 121 S.Ct. 2596, 150 L.Ed.2d 754.
In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001).
At approximately 4 a.m. on September 13, 1999, Omaha police found the body of Hume, a retired minister, lying in the street and on the curb in front of 2527 South 42d Street. Hume had been shot in the right side of his face. His hands were still in the pockets of his sports coat, and his wallet contained $1,029. The blood evidence indicated that Hume had been shot at that location.
Based on the report of an informant, two suspects were identified and arrested. While preparing to interview one of the suspects, Officer Melvin McCowen of the Omaha Police Department received an anonymous call stating that the police had arrested the wrong persons. The caller, subsequently identified as Amy Taylor, said that Ildefonso was responsible for the shooting. Taylor called the police after she heard on the news that one of the suspects had been arrested for the Hume murder. Taylor told police that she was staying with Ildefonso at the Ben Franklin Motel and that Ildefonso had told her he shot Hume because Ildefonso was mad at his girl friend, Kristine Reh, and he "wanted the world to feel his pain." Taylor said she met Reh and a friend of Reh's, Christina Devore-Alexander, when they came to the motel to purchase drugs from Ildefonso. Devore-Alexander had also told Taylor that Ildefonso confessed to shooting Hume.
Taylor also told police that she had seen Ildefonso with several guns, including a.357-caliber revolver and a 9-mm handgun. At McCowen's request, Taylor obtained bullets from the guns in Ildefonso's backpack and left the bullets with a desk clerk at the Ben Franklin Motel. McCowen picked up the bullets, which included two expended shells, one live .357-caliber round, and one live 9-mm round. Because the .357-caliber bullet was similar to the bullet taken from Hume's body, McCowen requested a comparison by the crime laboratory.
Devore-Alexander testified at trial that she and Reh were high school friends and that on September 13, 1999, Reh had called her and asked for a ride because Reh and Ildefonso, Reh's boyfriend, were arguing. Ildefonso was upset because Reh had another boyfriend and the boyfriend was about to be released from a correctional center. Devore-Alexander picked up Reh and Ildefonso, and they drove around Omaha, with Ildefonso giving directions. Near 42d and Bancroft Streets, Ildefonso directed Devore-Alexander to stop the car. When Ildefonso got out, Devore-Alexander turned to talk to Reh, who was in the rear seat. Devore-Alexander said she heard a gunshot, turned around, and saw Ildefonso with his arm extended and a gun in his hand. Hume was lying on the ground.
Ildefonso returned to the car with the gun in his hand and told Devore-Alexander to drive. She drove to her grandmother's house on North 52d Street, where the group stayed for about 3 hours. Devore-Alexander stated that Ildefonso threatened to kill her and Reh if they said anything about the shooting and told them that his life was in their hands. At about 6 a.m., Devore-Alexander gave Ildefonso and Reh a ride to Reh's car. Devore-Alexander then returned to her grandmother's house. Devore-Alexander testified that prior to the shooting, Ildefonso told her "the only thing that would make him feel better is if he shot somebody."
Reh testified at trial that after Devore-Alexander stopped her car near 42d and Bancroft Streets, Reh heard a gunshot and saw a man lying on the sidewalk as they left the area. Reh also said that she, Devore-Alexander, and Ildefonso had taken drugs together and that Ildefonso was using methamphetamine the night of the shooting.
On October 1, 1999, police took steps to obtain a warrant to search Ildefonso, a blue 1991 Chevrolet Cavalier, and a room at the Ben Franklin Motel on Interstate 80. Officer Anthony Strong began surveillance of the motel at 8 a.m. At about 11:30 a.m., Strong saw Ildefonso and Taylor leave the motel room, load the car, and stop at the motel office. When they left the motel, Strong notified Sarpy County sheriff's officers that Ildefonso and Taylor were northbound on Interstate 80. The Sarpy County officers pulled over the car at the Harrison Street overpass. The officers told Taylor, the driver, to turn off the car's engine and throw out the keys. Taylor and Ildefonso, who was sitting in the passenger's seat, were then removed from the vehicle. Strong saw a .357-caliber revolver under the passenger's seat of the car, and a 9-mm handgun was found in a backpack in the rear seat.
Daniel Bredow, senior crime laboratory technician and firearms toolmarks examiner with the Omaha Police Department, testified that the bullet from the .357-caliber revolver was consistent with the bullets left with the desk clerk at the motel and with the bullet removed from Hume's body.
The jury found Ildefonso guilty of first degree murder and use of a firearm to commit a felony. He was sentenced to life imprisonment without parole for the murder charge and to a consecutive term of 40 to 45 years' imprisonment for the use of a firearm charge.
Ildefonso assigns four errors. First, he asserts that the district court erred when it failed to sustain his motion to suppress because the affidavit in support of the application for a search warrant failed to set forth sufficient probable cause to support issuance of the warrant. Second, if it is determined that trial counsel failed to properly preserve the suppression issue for appellate review, Ildefonso asserts that he was deprived of effective assistance of counsel by that failure. Third, he argues that trial counsel was ineffective in failing to challenge the search warrant's validity on the basis that "vitally important facts, shaking the reliability of the affidavit to its core, were omitted by the affiant officer." As his fourth assignment of error, Ildefonso asserts that trial counsel was ineffective in failing to object to hearsay statements by McCowen, who testified without objection as to statements given to the police by Devore-Alexander and Reh.
Ildefonso moved to suppress any and all items of personal property seized by law enforcement on October 1, 1999, from his person, room No. 131 of the Ben Franklin Motel, or a 1991 Chevrolet Cavalier stopped at Interstate 80 and Harrison Street in Sarpy County. He argued that the evidence was seized without a warrant and was not obtained based on a valid stop and/or arrest. He asserted that the seizure based upon the warrant lacked probable cause, and he claimed that the stop was not based on exigent circumstances. At the suppression hearing, Mark Trapp, a deputy with the Sarpy County sheriff's office, testified that he was assigned to a detail which planned to serve a warrant at the Ben Franklin Motel on October 1, 1999. Before the officers could serve the warrant, they were advised that the suspect was leaving the motel in a two-door blue Chevrolet, and the officers were told to stop the vehicle. Trapp located the vehicle and activated his cruiser's overhead lights on Interstate 80 between Harrison and 126th Streets. After an emergency response unit arrived, the individuals in the car were placed in cruisers and the vehicle was searched.
The affidavit for the search warrant identified the following items as those being sought: (1) a .357-caliber revolver, "dark blue to black in color"; (2) a 9-mm semiautomatic handgun; (3) ammunition and accessories, including ammunition clips for the .357-caliber and 9-mm weapons; (4) any and all controlled substances, including but not limited to cocaine, methamphetamine, LSD, and their derivatives; (5) any and all homemade or manufactured equipment related to an illegal narcotics operation; (6) moneys and records pertaining to an illegal narcotics operation; and (7) venue items for Ildefonso.
Trapp observed a revolver under the passenger's seat of the vehicle and a backpack in the rear seat. The...
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