State v. McKinney
| Decision Date | 13 April 2007 |
| Docket Number | No. S-05-591.,S-05-591. |
| Citation | 730 N.W.2d 74,273 Neb. 346 |
| Parties | STATE of Nebraska, appellee, v. Lora L. McKINNEY, appellant. |
| Court | Nebraska Supreme Court |
Jerry L. Soucie and James R. Mowbray, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Corey M. O'Brien for appellee.
On April 8, 2003, following an investigation that lasted over 5 years, a grand jury returned an indictment of Lora L. McKinney for the murder of Harold L. Kuenning. A jury convicted McKinney of first degree murder. The district court sentenced McKinney to life imprisonment.
The State advanced the theory that Kuenning picked up McKinney, his former girlfriend, from the home of a friend. From there, the couple drove to Kuenning's cabin in rural Seward County, Nebraska. Once at the cabin, McKinney shot Kuenning with his own revolver, stole several guns from him, and drove his van back to Lincoln, Nebraska. The State claimed that McKinney's motive was either money or a belief that Kuenning was responsible for placing McKinney's 3-year-old daughter into foster care.
McKinney's theory focused on other suspects, including Terri Fort, who McKinney claims had an ongoing sexual relationship with Kuenning, and Joseph Walker, McKinney's former boyfriend. McKinney also points to evidence that showed Fort and Walker stayed in Lincoln in a hotel room registered to Fort within hours of the murder. In the hotel room, law enforcement officers later found a firearm registered to Kuenning; law enforcement could not exclude the firearm as the murder weapon.
On January 6, 1998, at around 5 p.m., a neighbor discovered Kuenning's body in Kuenning's cabin. Kuenning died from three gunshot wounds. The evidence established that Kuenning died sometime between 9:30 p.m. on January 5 and 5:30 a.m. on January 6. From the bullets retrieved from Kuenning's body, the Nebraska State Patrol determined that the perpetrator killed Kuenning with either a .38- or .357-caliber weapon.
On January 7, 1998, law enforcement discovered Kuenning's van parked about two blocks from Fort's home. The officers found McKinney's fingerprint near the door handle on the driver's side. They performed a fingerprint analysis on items found in Kuenning's cabin, including a Newport cigarette package and a purse found on Kuenning's bed; McKinney's fingerprints appeared on both those items. In addition, DNA testing performed on beer cans, soda cans, and cigarette butts found in the cabin revealed McKinney's DNA on a soda can. Law enforcement also found a mixture of Kuenning's and McKinney's DNA on three of the recovered cigarette butts.
Law enforcement also discovered unknown DNA present on a spent bullet recovered at the scene and an unidentified palm print on a Newport cigarette package. At trial, a fingerprint examiner's testimony excluded McKinney and other suspects as the source of that print, but did not exclude Kuenning.
Sometime before his death, someone stole from Kuenning a Ruger .44 Magnum revolver and a Colt .357 Magnum revolver. Law enforcement eventually recovered the guns, and Kuenning picked them up from the Lincoln Police Department on January 5, 1998. Law enforcement did not find these weapons in either Kuenning's van or cabin following his death. Law enforcement recovered the .44 Magnum revolver after a traffic stop in Omaha, Nebraska, about 7 months after the murder, and law enforcement found the .357 Magnum in a room at a Holiday Inn Express located at 11th Street and Cornhusker Highway in Lincoln. A .38-caliber revolver registered to Kuenning was never recovered.
During the investigation in 1998, officers interviewed McKinney on January 8, 15, and 19. The court admitted these statements into evidence. In the January 8 interview, McKinney discussed her relationship with Kuenning. She stated that she had not seen Kuenning during the previous 2 to 3 weeks. In the January 15 statement, McKinney again stated she had not seen Kuenning since before Christmas.
On January 19, 1998, while in custody on a drug charge, officers again interviewed McKinney. During that interview, McKinney acknowledged that she had lied to officers on January 8 and 15 when she stated that she had not seen Kuenning since before Christmas. McKinney admitted that she saw Kuenning on January 5 at Fort's home, that she had a conversation with Kuenning in Kuenning's van in Fort's driveway, and that she and Kuenning later drove around a while in Kuenning's van. During that interview, she stated that she remembered being at a Save Mart grocery store with Walker "on Monday night," which was the night that Kuenning was last seen alive. McKinney also indicated that she had spent Tuesday night at a hotel with Walker. Finally, during that interview, she admitted to having stolen a .44 Magnum revolver from Kuenning on January 5, but stated that it was the only gun she took.
Both Fort and Walker testified. Fort testified that McKinney left with Kuenning on the evening of January 5, 1998, and did not return to Lincoln until the early morning hours of January 6. Fort also testified that she and Walker had been together at a Holiday Inn Express hotel located at 11th Street and Cornhusker Highway in Lincoln in the early morning hours of January 6.
Walker testified that he saw McKinney in either the late evening hours of January 5, 1998, or the early morning hours of January 6. Although some of the details varied, Walker's testimony was generally consistent with Fort's regarding the stay at the hotel. Walker also testified that at that time he saw McKinney either late January 5 or early January 6, McKinney told him that she had shot or killed Kuenning and that she needed help disposing of some guns.
Regarding the disposal of the guns, Fort's son testified that McKinney had tried to sell him a gun in exchange for some crack cocaine, but that he refused. And another individual testified that McKinney tried to sell him a gun, but he had also refused. McKinney, however, was successful in exchanging, with James Cheatham, a .44 Magnum revolver for some crack cocaine. Cheatham testified he later sold the gun in Omaha.
McKinney argues that the district court erred in (1) denying her motion to suppress her DNA sample taken under the identifying physical characteristics statutes (IPCS)1; (2) denying her motion to obtain DNA from other suspects under a subpoena duces tecum; (3) denying her motion to suppress her statements made to law enforcement; (4) admitting Fort's testimony and other evidence obtained because of Fort's testimony; and (5) denying her motion to dismiss the indictment, motion for mistrial, and motion to strike certain testimony because of the release of grand jury testimony.
McKinney argues that the district court erred in not suppressing her DNA evidence from the buccal swab and her pubic hair. She claims the search violated the IPCS and the Fourth Amendment.
On June 9, 1998, the State obtained an order under § 29-3303 to collect evidence identifying McKinney's physical characteristics, including blood, hair, and buccal swab samples. When the State executed the order, McKinney was serving a sentence on a misdemeanor—second degree forgery. She moved to suppress that physical evidence, alleging that the seizure lacked probable cause. The district court determined that the order lacked probable cause. The court nevertheless refused to suppress the physical evidence. It concluded that under § 29-3304. law enforcement did not require a court order to collect McKinney's DNA. Section 29-3304 provides:
No order shall be required or necessary where the individual has been lawfully arrested, nor under any circumstances where peace officers may otherwise lawfully require or request the individual to provide evidence of identifying physical characteristics, and no order shall be required in the course of trials or other judicial proceedings.
Interpretation of the IPCS presents a question of law, and we resolve questions of law independently of the trial court's conclusions.2
The State claims that under § 29-3304, law enforcement did not need a court order because McKinney had been arrested and convicted of attempted forgery. McKinney, however, argues that the court's interpretation of § 29-3304 sweeps too broadly because it would allow any arrest to negate the probable cause requirement for a search and seizure. McKinney argues that a showing of "probable cause" must relate to the offense under investigation. That is, only if the officers had arrested McKinney for murder— the crime for which the DNA is sought— would the exception in § 29-3304 apply. McKinney argues that to hold otherwise would "gut the other protections contained in the IPC[S] and make the Fourth Amendment irrelevant."3 McKinney does not assign as error that § 29-3304 is unconstitutional, so we do not address that issue. But she does argue that any seizure of her identifying information without a showing of probable cause violates the Fourth Amendment.
The Fourth Amendment to the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Probable cause to search requires that the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that...
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