State v. Keup
| Decision Date | 10 January 2003 |
| Docket Number | No. S-01-758.,S-01-758. |
| Citation | 655 N.W.2d 25,265 Neb. 96 |
| Parties | STATE of Nebraska, Appellee, v. Tyler J. KEUP, Appellant. |
| Court | Nebraska Supreme Court |
Robert P. Lindemeier, Lincoln County Public Defender, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
The defendant, Tyler J. Keup, was charged by complaint on August 8, 2000, with first degree murder, use of a firearm to commit a felony, and being a felon in possession of a firearm, in connection with the shooting death of Maricela Martinez. Keup waived a preliminary hearing and was bound over to the district court. An information was filed charging Keup with the offenses listed above, and on September 18, Keup entered a plea of not guilty. On January 16, 2001, Keup waived his right to a jury trial.
On February 16, 2001, Keup filed a pretrial motion to suppress evidence seized from Keup's home allegedly in violation of Keup's Fourth Amendment rights. As pertinent to this appeal, Keup sought to suppress a spiral notebook containing a "letter" written by Keup that described one version of the circumstances of Martinez' death. The district court overruled Keup's motion to suppress on February 27, based on the district court's conclusion that the notebook was in plain view when examined and seized. The facts relating to Keup's motion to suppress will be discussed in more detail below.
The case was tried to the court on February 27, 2001. Keup renewed his motion to suppress with a timely objection to the offer into evidence of the notebook. After the close of all the evidence, Keup filed a motion to dismiss the charge of first degree murder, which was granted by the district court because there was no evidence of premeditation. The district court indicated, however, that it would consider lesser-included offenses of first degree murder. Keup and the State made closing arguments, during which Keup argued that the evidence did not prove beyond a reasonable doubt that Keup acted intentionally and that Keup should be convicted only of the lesser-included offense of manslaughter. At no point did Keup object to the court's consideration of lesser-included offenses.
The district court found Keup guilty of second degree murder, use of a weapon to commit a felony, and being a felon in possession of a firearm. Keup was sentenced to 25 to 50 years' imprisonment for second degree murder, 5 to 10 years' imprisonment for the use of a firearm to commit a felony, and 1 to 3 years' imprisonment for being a felon in possession of a firearm; the latter two terms of imprisonment were to run concurrently, and the second term of imprisonment was to run consecutively to the first. Keup appeals.
In June or July 2000, Keup told a friend, Michael L., that Keup wanted a handgun. Michael stole a ".25 millimeter semi-automatic handgun" in a burglary, and on August 3, Michael sold the gun to Keup for $72. Keup later showed the gun to two of his friends. Keup told them that Keup intended to scare a person who had "ripped [Keup] off" in a drug-related transaction.
On August 4, 2000, Keup telephoned Martinez and tried to arrange the purchase of drugs. Tanya Lynn Barnett, Martinez' roommate, told Martinez to call Keup back so that they could "rip him off," meaning that they would take Keup's money but not provide drugs. Barnett then left the residence to go shopping. Keup went to Martinez' residence while Barnett was gone.
Keup took the gun with him when he went to Martinez' residence. Keup testified that he had no plan or intent to shoot Martinez and that he took the gun in order to trade or sell it to get drugs. Keup testified at trial that he and Martinez were playing with the gun by pointing it at each other and, in jest, threatening to fire. Keup's testimony at trial was that although he knew the gun was loaded, he thought the safety was on, and was pointing the gun at Martinez' head with his finger on the trigger and the hammer pulled back when the gun just "went off."
Sgt. Mark F. Bohaty, an expert from the Nebraska State Patrol Criminalistics Laboratory, testified that he later tested the weapon and was unable to induce an accidental discharge. Bohaty also testified that he conducted a "trigger-pull test," intended to determine how much force could be applied to the trigger of the gun before the gun would fire. Bohaty testified that between 4 and 5.25 pounds would need to be applied, depending on which part of the trigger was pressed, before the trigger would activate. This was well above the industry standard of 3 pounds.
Keup testified that after the shooting, he grabbed his cigarettes, fled Martinez' residence, and went home, where, because he was scared, he lied to his parents and said that he had seen Martinez commit suicide. Additionally, Barnett testified that after she returned home, she noticed that Keup's telephone number had been erased from the caller identification device at Martinez' residence, although she and Martinez never erased telephone numbers from the device and all of the other calls remained in the device's memory.
When Barnett returned home, she called the 911 emergency dispatch service. Police responded and found Martinez dead, seated on her couch, with an apparent wound to the right temple. A single, small-caliber firearm casing was found on the floor 2 to 3 feet from Martinez' body. Martinez was taken to the hospital and was determined to have suffered a single gunshot wound to the head. It was determined, based on the bullet path and nature of the wound, that the gun was between 1 and 2 inches from Martinez' head when discharged.
Lt. Rick Ryan, of the North Platte Police Department, was at the hospital following Martinez' transport there, when he received a telephone call from Keup's father. Keup's father said that Keup had witnessed a suicide. Ryan met with Keup and Keup's parents at the police station. Keup's father brought a small handgun that had been given to him by Keup. This gun was later identified as the gun sold to Keup by Michael and was also determined to have discharged the shell casing that was found near Martinez' body.
Keup and his parents were read their Miranda rights and waived those rights and agreed to speak to Ryan. Keup stated to Ryan that Keup had telephoned Martinez and gone to Martinez' residence to retrieve some personal belongings. Keup told Ryan that Martinez had produced the gun, that Keup had handled it and given it back to Martinez, and that then, while Keup was looking away, the gun went off. Keup claimed to Ryan that because Keup was a convicted felon and Keup's fingerprints were on the gun, Keup took the gun and fled the scene.
Ryan asked Keup to take a polygraph examination, which was administered by Investigator Randy Billingsley of the North Platte Police Department. Based on the examination, Billingsley told Keup that Keup was being untruthful. The results of the polygraph examination were admitted into evidence at trial only as foundation for Keup's ensuing statements to Billingsley. When accused by Billingsley, Keup broke down and admitted that he had shot Martinez. Keup still claimed that the gun was Martinez' and that Keup had unloaded it and was playing with it when it went off. At trial, Keup admitted lying to both Ryan and Billingsley.
Investigator Matt Phillips of the North Platte Police Department testified that he was required to collect evidence of physical characteristics from Keup, including hair, blood, and urine samples. During these procedures, Keup asked if the judge would see the results of Keup's blood tests for drugs and alcohol. Phillips replied that the judge probably would see those test results. According to Phillips, Keup replied, "`Good, because there was nobody present when I shot her, and the only witnesses were those outside when I left.'"
Phillips also testified regarding the execution of a search warrant at Keup's residence on August 5, 2000. The search warrant described the items to be found, generally, as .25-caliber ammunition, the clothing and sunglasses worn by Keup at the time of the shooting, and the bicycle Keup used as transportation to and from Martinez' residence.
Phillips was searching the basement of the Keup residence looking for .25-caliber ammunition, which he described as being about one-half inch long and one-quarter inch wide. While searching the basement, Phillips saw a spiral notebook "[l]aying in plain view on a shelf" about 2 to 3 feet off the ground. Phillips lifted the notebook up and saw that the page to which the notebook was open had text written on it that related to the death of Martinez, so Phillips seized the notebook. Phillips testified that he picked the notebook up and began reading it after he saw some of the words written on the top page.
The record contains a photograph taken at the scene of the notebook as it appeared when it was found, which indicates that the top page of writing was visible and legible to anyone in a position to look at the shelf. The page to which the notebook was open contains text that clearly relates to the death of Martinez. The writing begins "Dear Lord, I am afraid and scared" and sets forth a version of events that generally corresponds to the statement Keup made to Ryan, but later repudiated. At trial, Keup acknowledged the writing and claimed that he wrote it because he was "just trying to fool myself."
The primary issue contested at trial was whether the gun fired accidentally or Keup fired the gun intentionally. After the close of the evidence and closing arguments, the district court concluded that Keup had pulled the trigger and fired the weapon intentionally, and was guilty of second degree murder.
Keup assigns, restated, that the district court erred in (1) overruling his motion to suppress...
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...act, a finder of fact may infer that the defendant intended a reasonably probable result of his or her act." State v. Keup, 265 Neb. 96, 109, 655 N.W.2d 25, 36 (2003). Thus, intent to kill may be inferred from deliberate use of a deadly weapon in a manner reasonably likely to cause death. S......
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