State v. Myers
| Decision Date | 10 December 1999 |
| Docket Number | No. S-98-856.,S-98-856. |
| Citation | 258 Neb. 300,603 N.W.2d 378 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, appellee, v. James E. MYERS, appellant. |
Alan G. Stoler and Jerry M. Hug, Omaha, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
James E. Myers was charged by amended information with first degree murder (count I), use of a deadly weapon in the commission of a felony (count II), possession of a deadly weapon by a felon (count III), and, for sentencing purposes, being a habitual criminal (count IV). A jury returned guilty verdicts on counts I, II, and III, and the district court determined that Myers should be sentenced as a habitual criminal. Myers was sentenced to life imprisonment on count I, 18 years' imprisonment on count II, and 10 years' imprisonment on count III. The present appeal followed.
A trial court's ruling on a motion to suppress, 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. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999).
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by such rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in the admissibility of evidence. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). A trial court's determination of the adequacy of the State's "neutral explanation" of its peremptory challenges will not be reversed on appeal unless clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).
In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v. Sanchez, supra.
In September 1995, law enforcement officials began investigating the murder of Lynette Mainelli. On April 19, 1996, the Douglas County Attorney filed an application with the Douglas County District Court for an order authorizing interception of wire communications involving telephone numbers listed to Myers' mother, Annie Henley.
The affidavit attached to the application for the wiretap stated that the Douglas County Attorney had probable cause to believe that Myers and others had knowingly and willingly engaged in murder and the distribution of narcotics and that Myers and others were conspiring with each other regarding these crimes. The affidavit stated that a narcotics operation of any size will utilize the telephone, whether it be for contacting sources and distributors or for discussing such things as cost, quality, and payments. In addition, persons involved in a murder often use the telephone to assist in the destruction of evidence, construction of alibis, and intimidation of potential witnesses, as well as for purposes of contacting others involved in the murder.
The objective of intercepting the wire communications was to record conversations revealing details of Mainelli's murder so as to ascertain the identity of individuals involved in the murder and to record conversations revealing details of suspected narcotics trafficking. Such information would be used by police to assess the nature and scope of the continuing conspiracy regarding the murder and drug trafficking; to discover the location of physical evidence; to track the manner in which moneys derived from the illegal narcotics transactions were utilized, concealed, laundered, or otherwise disposed of; and to locate the sources of the illegal narcotics.
The affidavit also stated that normal investigative procedures had been tried and failed or reasonably appeared to be unlikely to succeed if tried and that there was probable cause to believe that the telephone numbers listed to Henley were being used by Myers and others. The district court found the affidavit to be sufficient, and the police were then allowed to place a wiretap (wiretap 1) on the telephones at Henley's residence.
On May 3, 1996, the Douglas County Attorney applied for an order authorizing the interception of wire communications involving a telephone number listed to Myers' girl friend, Tara Lynam. The affidavit for this wiretap (wiretap 2) was based on information obtained from wiretap 1, and as a result of the information gained from both wiretaps, the State obtained search warrants and arrested Myers.
Myers filed a pretrial motion to suppress evidence derived from the wiretaps and to suppress the warrants obtained as a result of the wiretaps on the grounds that his rights under the 4th, 5th, 6th, and 14th Amendments to the U.S. Constitution; article I, § 7, of the Nebraska Constitution; Neb.Rev.Stat. §§ 86-701 to 86-712 (Reissue 1994 & Supp.1995); and Neb.Rev.Stat. § 29-822 (Reissue 1995) were violated. Myers also moved in limine to keep out evidence and testimony related to gangs, previous felony convictions, and communications intercepted via a wiretap, including conversations between Henley and Myers' sister, Sheila Myers.
The pretrial motions were denied by the district court. The district court found that the State had satisfied the four requirements set forth in § 86-703, that the Nebraska Attorney General's approval of the wiretaps satisfied the statutory requirements, that the State had established probable cause, and that the amendments to the original interception order did not affect Myers.
After the jury was sworn, Myers made a motion under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claiming that three African-American jurors had been stricken because of their race. While the motion was not timely, the State waived the timeliness issue with the district court's approval. The State advanced its reasons for striking the three jurors, and the case proceeded to trial.
The jury found Myers guilty of counts I, II, and III, and the district court found Myers to be a habitual criminal. Myers was sentenced to life imprisonment for the murder, a term of 18 years' imprisonment for use of a deadly weapon in the commission of a felony, and a term of 10 years' imprisonment for possession of a deadly weapon by a felon. This timely appeal follows.
Myers claims that (1) the district court erred in failing to suppress evidence derived from unlawful wiretaps; (2) the affidavit supporting the application for wiretap 2 failed to demonstrate probable cause for belief that Myers had committed, was committing, or was about to commit a crime, and the order authorizing wiretap 2 was unlawfully issued because wiretap 1 was tainted; (3) the district court committed error in determining that the State had valid race-neutral explanations for its peremptory challenges to three African-American jurors; (4) the district court erred in overruling Myers' motion in limine and allowing the State to play tape-recorded conversations to the jury, as the conversations were hearsay and irrelevant and their probative value was outweighed by their prejudicial effect; (5) the district court erred in allowing testimony regarding a meeting involving Myers at a Council Bluffs, Iowa, hotel, as it was hearsay and irrelevant and its probative value was outweighed by its prejudicial effect; (6) there was insufficient evidence to support the convictions for first degree murder, use of a weapon in the commission of a felony, and possession of a weapon by a felon; and (7) the district court erred in submitting jury instruction No. 6 to the jury, as step instructions in murder cases are violative of the 6th, 8th, and 14th Amendments to the U.S. Constitution; article I, §§ 3 and 11, of the Nebraska Constitution; and Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
Myers claims that the district court erred in failing to suppress evidence derived from two unlawful wiretaps. We have fully evaluated the placement of these wiretaps and the accompanying pretrial motions in State v. Myers, 258 Neb. 272, 603 N.W.2d 390 (1999). We concluded that the search warrants authorizing placement of the wiretaps were valid and that the district court was not clearly wrong in overruling Myers' pretrial motions to exclude evidence obtained as a result of these wiretaps. Id.
A trial court's ruling on a motion to suppress, 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. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999). We find this assignment of error is without merit.
Myers argues that the State's peremptory challenges to three African-American members of the jury pool were racially motivated. Relying upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Myers challenged the removal of these jurors, but did not do so until after the jury had been sworn.
In State v. Covarrubias, 244 Neb. 366, 507 N.W.2d 248 (1993), questioned on other grounds, State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995),
we held that an attack on the use of peremptory challenges on Batson grounds must be made prior to the...
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