State v. Illig

Citation237 Neb. 598,467 N.W.2d 375
Decision Date22 March 1991
Docket NumberNo. 89-1273,89-1273
PartiesSTATE of Nebraska, Appellee, v. David E. ILLIG, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. The Supreme Court will uphold the trial court's ruling on a motion to suppress unless the trial court's findings of fact are clearly erroneous.

2. Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress, the Supreme 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 the trial court has observed the witnesses testifying in regard to such motions.

3. Constitutional Law: Search and Seizure: Judges. As a general rule, searches conducted outside the judicial process without prior approval by a judge or magistrate are per se unreasonable under the fourth amendment to the U.S. Constitution.

4. Police Officers and Sheriffs: Search and Seizure: Warrants. Police may make warrantless entries on premises where the police reasonably believe that a person within is in need of immediate aid.

5. Police Officers and Sheriffs: Search and Seizure: Warrants: Homicide. Police may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.

6. Police Officers and Sheriffs: Search and Seizure: Warrants: Evidence. If while on the premises the police inadvertently discover incriminating evidence in plain view or as a result of some activity on their part that bears a material relevance to the initial purpose for their entry, they may lawfully seize without a warrant.

7. Search and Seizure: Evidence. For a warrantless search to qualify as an emergency exception, there must reasonably appear to exist an exigency in the course of which a discovery related to the purpose of the entry is made. The exigent circumstances legitimate the presence, and the relevance of the discovery to the justification for the entry sanctions the seizure.

8. Police Officers and Sheriffs: Search and Seizure: Evidence: Intent: Probable Cause. The basic elements of the emergency exception regarding a warrantless search are that (1) the police must have reasonable grounds to believe that there is an emergency at hand and that there is an immediate need for their assistance for the protection of life or property, (2) the search must not be primarily motivated by intent to arrest and to seize evidence, and (3) there must be some reasonable basis, approximating probable cause, for associating the emergency with the area or place to be searched.

9. Trial: Evidence: Appeal and Error. An erroneous ruling regarding the admission of evidence results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

10. Trial: Juries: Verdicts: Appeal and Error. Error is harmless where the conduct of the trial court did not materially influence the jury in a verdict adverse to the substantial rights of the defendant.

11. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the erroneously admitted evidence is cumulative and other relevant evidence, properly admitted, or admitted without objection, supports the findings of the trier of fact.

12. Probation and Parole: Civil Rights: Convictions: Weapons. The release of a convicted felon from probation and the restoring of his or her civil rights under Neb.Rev.Stat. § 29-2264 (Reissue 1989) does not nullify that conviction under the terms of Neb.Rev.Stat. § 28-1206(1) (Reissue 1989), which prohibits a person who has previously been convicted of a felony from possessing certain types of firearms.

13. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal in the absence of an abuse of discretion.

14. Trial: Joinder: Evidence: Appeal and Error. Joinder is not prejudicial error where evidence relating to both offenses would be admissible in a trial of either offense separately.

15. Trial: Joinder: Proof. The defendant bears the burden of proving that prejudice will result from a joinder of offenses.

16. Convictions: Appeal and Error. In determining the sufficiency of the evidence to support a criminal conviction, this court does not resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence presented.

17. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, this court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence.

18. Verdicts: Appeal and Error. A verdict of guilty must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the verdict.

19. Homicide: Intent: Circumstantial Evidence. Malice and intent in a murder charge may be inferred from the words and acts of the defendant, from the facts and circumstances surrounding his or her conduct, and from the evidence relating to the circumstances of the criminal act.

20. Criminal Law: Directed Verdict. The trial court is justified in directing a verdict of not guilty only where the evidence completely fails to establish an essential element of the crime charged, or evidence is so doubtful in character and lacking probative value that a conviction based thereon cannot be sustained.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, for appellant.

Robert M. Spire, Atty. Gen., and Steven J. Moeller, for appellee.

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

HASTINGS, Chief Justice.

David E. Illig, the defendant, appeals jury convictions of second degree murder, use of a firearm to commit a felony, and felon in possession of a firearm. We affirm.

During the early morning hours of January 24, 1989, the victim, Chris Smith, knocked loudly on the door of the residence of the defendant and his girl friend, Diane Antillon. Antillon went to the door, asked who was there, and related to the defendant that Smith was at the door. The defendant asked her for a gun and, thereafter, by his own devices, obtained a .38-caliber handgun which belonged to him.

The testimony indicates that the defendant opened the door and that the victim demanded a $100 payment, which he claimed was due and owing because of some earlier business transaction between the two men. Antillon tried to dissuade the victim from pressing his demands, and she somehow became situated between the defendant and the victim. During the confrontation at the door, the defendant asserts he saw the victim thrust forward a knife and that defendant then fired one round from his handgun. He then "shut [his] eyes" and fired again.

The victim died as a result of the gunshot wounds. Defendant's girl friend and a neighbor called the 911 emergency number. Police officers arrived at the scene and made the customary investigation.

Officer Carlson of the Omaha Police Division was the first law enforcement officer to arrive on the scene. As he arrived, the defendant emerged from a group of trees near his residence. Carlson ordered the defendant to halt and then asked, "What happened?" The defendant replied, "He tried to kick my door in." Carlson asked where the victim was. Illig pointed toward the victim lying on the driveway. Carlson then asked, "Who shot him?" The defendant responded, "I did." Carlson had the defendant walk backward, did a visual check for weapons, and then had him lie face down on the driveway, following which Carlson's backup, Officer Zadalis, arrived and handcuffed Illig.

Officer Carlson then proceeded to the residence of the defendant. He testified that the screen door was shut, but that the wooden front door to the house was open.

He said that he walked up to the screen door and Antillon opened the door. He asked her where the gun was. She pointed to the gun on the coffee table. Carlson entered the residence and secured the area around the weapon, leaving the weapon itself untouched. He could see that the weapon was unloaded because it was partially "broke" open.

Officer Briese, an officer of the homicide-assault unit of the Omaha Police Division, relieved Carlson and investigated the scene. Briese testified over objection as to observing in plain sight various weapons and spent and unfired cartridges, as well as the .38-caliber handgun which fired the fatal shots, all of which evidence he seized.

The trial court correctly instructed the jury as to second degree murder and manslaughter, and also as to the claimed defense of self-defense and as to the fact of restoration of civil rights of the defendant after having successfully completed a term of probation for the underlying conviction of a felony. Nevertheless, defendant appeals, assigning as error the action of the trial court in (1) overruling defendant's motion to suppress evidence seized in violation of his rights under the 4th and 14th amendments to the U.S. Constitution and article I, §§ 1 and 7, of the Nebraska Constitution (improper search and seizure as to the weapons and cartridges), (2) failing to quash and/or to dismiss the count as to felon in possession of a firearm (because of his successful completion of his probation and restoration of his civil rights by reason thereof), (3) failing to sever the count as to felon in possession of a firearm from second degree murder and use of a weapon to commit a felony, and (4) failing to dismiss the counts as to second degree murder and use of a firearm to commit a felony or, in the alternative, to direct a verdict of acquittal because there was insufficient evidence to support the verdict or to rebut the defendant's evidence of self-defense or defense of others.

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23 cases
  • State v. Williams
    • United States
    • Supreme Court of Nebraska
    • May 5, 1995
    ...v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), and its progeny: State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992); State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991); State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991); State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988); State v. Ettl......
  • State v. Ortiz
    • United States
    • Supreme Court of Nebraska
    • October 1, 1999
    .......          Payton, 445 U.S. at 589-90, 100 S.Ct. 1371 . Accordingly, we have held that a warrantless search must be strictly confined by the exigencies which justify its initiation. State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991), citing Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) . United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), and State v. Dearman, 92 Wash.App. 630, 962 P.2d 850 (1998), both concluded that a canine sniff of an area which ......
  • State v. Ryan
    • United States
    • Supreme Court of Nebraska
    • February 2, 1996
    ...(1995); State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994); State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992); State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991); State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988); State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986); State v. Rowe, ......
  • State v. Matthews
    • United States
    • United States State Supreme Court of North Dakota
    • July 16, 2003
    ...227, 686 P.2d 750, 760-61 (1984); People v. Bondi, 130 Ill.App.3d 536, 85 Ill.Dec. 773, 474 N.E.2d 733, 736 (1984); State v. Illig, 237 Neb. 598, 467 N.W.2d 375, 381 (1991); State v. Follett, 115 Or.App. 672, 840 P.2d 1298, 1302 [¶ 29] In Mitchell, a maid had not been seen for hours and had......
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1 books & journal articles
  • Emergency circumstances, police responses, and Fourth Amendment restrictions.
    • United States
    • Journal of Criminal Law and Criminology Vol. 89 No. 2, January 1999
    • January 1, 1999
    ...(738) Mincey, 437 U.S. at 392; Tyler, 436 U.S. at 509-10. (739) Mincey, 437 U.S. at 393; Tyler, 436 U.S. at 509. (740) State v. Illig, 467 N.W. 2d 375, 381 (Neb. (741) See, e.g., United States v. Goldenstein, 456 F.2d 1006, 1010 (8th Cir. 1972) (although police entry of hotel room in search......

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