State v. March
| Decision Date | 14 March 2003 |
| Docket Number | No. S-01-755.,S-01-755. |
| Citation | 658 N.W.2d 20,265 Neb. 447 |
| Parties | STATE of Nebraska, Appellee, v. Byron MARCH, Appellant. |
| Court | Nebraska Supreme Court |
James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Byron March was convicted in the district court for Scotts Bluff County of two counts of first degree assault and one count of burglary. March was sentenced to 8 to 16 years' imprisonment on one first degree assault conviction, 2 to 4 years' imprisonment on the second first degree assault conviction to be served consecutively, and 1 to 2 years' imprisonment on the burglary conviction to be served concurrently with the other sentences. During the early stages of the proceedings, the trial court granted March's motion to suppress evidence located during execution of a search warrant, but such ruling was reversed by a single judge of the Nebraska Court of Appeals pursuant to the authority contained in Neb.Rev.Stat. § 29-824 (Cum. Supp.2002). Following trial, March appealed his convictions and the denial of his motion to suppress to the Court of Appeals. The Court of Appeals affirmed, and we granted March's petition for further review. We affirm.
In the early hours of November 30, 1999, Officer Ken Webber and another officer were called to a Scottsbluff motel to deal with a noise disturbance. They discovered a loud party going on in room 243. Upon entering the room, the officers noticed March arguing with another man. They told the occupants of the room that the party was over and directed the occupants to cease making noise. The officers then left the motel.
Within 2 hours, the officers and two additional officers were called back to the motel to investigate a report of a "dead woman" in room 132. They observed that the door to room 132 was damaged and appeared to have been forced open. Inside the room, they found a male victim on the floor with blood around his head. Upon examining the man's head, they noted an impression of a shoe sole with a "Nike Air" trademark. The officers also found a female victim who was not dead but had a large amount of blood around her head, was nude from the waist down, and appeared to have been sexually assaulted.
The officers spoke with three individuals who said they had been partying in room 132 with the two victims. One of the three individuals was a man who had earlier been seen arguing with March at the party in room 243. The three said they left the motel to get cigarettes and returned approximately 20 minutes later to find the two victims bleeding on the floor. The officers observed no bloodstains on the three witnesses' clothing.
The officers decided to search for a shoe with a sole pattern similar to the impression on the male victim's head and focused their search on people who were at the party in room 243. While questioning occupants of room 243 and others who had been at the party, Webber inquired as to the whereabouts of the "big white guy," later identified as March, who had been arguing at the party. He was told March was staying in room 258.
Webber and two other officers went to room 258 to question March. When they arrived, they noticed the door was partially open. When Webber knocked on the door, the door opened 6 to 8 inches, and another officer observed someone, later identified as March, lying on the bed. Webber shouted "`police department'" into the room a couple times and received no response. Fearing another possible victim, the officers entered the room. As the facts evolved, March proved not to be a victim.
Sometime after entering the room, Webber noticed that the shower area was wet and saw a blood smear on the shower curtain. In ruling on the motion to suppress, the trial court found that these observations were made after March's well-being had been ascertained, whereas the single judge of the Court of Appeals determined that such observations occurred before March's condition was assessed. Webber testified that he approached March and noticed his hair was wet and he had a cut on his hand.
After attempting to rouse March, Webber observed an unzipped duffelbag containing a pair of white underwear which appeared to be bloodstained. Another officer saw a shoe that appeared to be bloodstained. The officer picked up the shoe and showed the sole pattern to a third officer who said the pattern looked similar to the impression on the male victim's head. The second officer took the shoe to room 132 to show it to the fourth officer who agreed that the sole pattern was similar to the impression on the male victim's head. The second officer returned to March's room and placed March under arrest. An affidavit for a search warrant was prepared, essentially containing the facts recited above. On the basis of the affidavit, a search warrant was subsequently issued for a search of March's room and numerous items of evidence were found which linked March to the crimes committed in room 132.
March was charged with first degree sexual assault, two counts of first degree assault, and burglary. Prior to trial, March moved to suppress evidence obtained from his motel room pursuant to the search warrant. The trial court granted the motion. The State filed an interlocutory appeal to a single judge of the Court of Appeals pursuant to the provisions of § 29-824, and the single judge reversed. State v. March, No. A-00-445, 2000 WL 1252056 (Neb.App. Sept.5, 2000) ().
The single judge and the trial court both determined that the officers had lawfully entered March's room under the emergency exception to the warrant requirement. They also both agreed that once the officers discovered that no emergency existed, they had a duty to retreat, and that therefore, the subsequent search of March's duffelbag and the seizure of his shoes were illegal and must be excised from the affidavit in support of the search warrant. In our analysis below regarding the sufficiency of the affidavit, we treat the evidence of the contents of the duffelbag and the shoes as having been excised.
The trial court and the single judge diverged in their determinations regarding when Webber observed the wet shower area and the blood smear on the shower curtain. The trial court had found that the observations had been made sometime after the initial entry and assessment of March's condition and that thus, the product of those observations was not properly obtained. In contrast, the single judge determined that the evidence from the hearing on the motion to suppress "conclusively establishe[d]" that the observations of the bathroom area were made as Webber entered the room and was headed toward March. State v. March, No. A-00-445, 2000 WL 1252056 at *9. Because the trial court excised these observations from the affidavit, it found no probable cause for the issuance of the search warrant and had therefore ruled to suppress the evidence obtained from the execution of the search warrant. The single judge, however, determined that Webber's observations of the wet shower and the blood smear on the shower curtain as well as the cut on March's hand could be used in assessing the sufficiency of the affidavit in support of the search warrant and that with the inclusion of these facts, probable cause for issuance of the search warrant existed. According to the single judge, the evidence located as a result of execution of the search warrant was properly obtained. The single judge therefore reversed the trial court's order which had granted the motion to suppress.
At this point, March filed a motion for a rehearing in the Court of Appeals. The Court of Appeals concluded that a motion for a rehearing is permitted only where the underlying opinion is by "the court," that a single-judge opinion is not an opinion of "the court," and that therefore, the motion for rehearing was not authorized. The motion for rehearing was stricken. State v. March, 9 Neb.App. 907, 622 N.W.2d 694 (2001). See, also, State v. Chambers, 242 Neb. 124, 493 N.W.2d 328 (1992).
During the subsequent bench trial, March attempted to raise the issues first raised in his motion to suppress. In this connection, March offered exhibit 64, consisting of two pages from a multipage police report prepared by Webber on November 30, 1999. While making the offer, counsel for March stated that exhibit 64 was not offered as evidence for trial but solely in connection with the issues encompassed by the motion to suppress and represented that "[t]his report wasn't available to the defense at the—on the date of the Motion to Suppress hearing, it was later provided." Contrary to Webber's testimony at the suppression hearing and at trial, the report indicated that Webber had not observed the wet shower and the blood smear on the shower curtain until some time after he had approached March and tried to rouse March. The timing of these observations is not explicit in the affidavit in support of a search warrant. The trial court refused to admit the report into evidence, stating, "I'm going to overrule the Motion to Suppress and I'm going to show that the Exhibit 64 was not received because, as I understand it, [March is] offering it just in support of the Motion to Suppress." The trial court subsequently convicted March of two counts of first degree assault and one count of burglary but dismissed the count of first degree sexual assault due to insufficient proof. March was sentenced to 8 to 16 years' imprisonment on one assault conviction, 2 to 4 years' imprisonment on the second assault conviction to be served consecutively to the first, and 1 to 2 years' imprisonment on the burglary conviction to be served concurrently with the other sentences.
March appealed to the...
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