State v. Nissen
Decision Date | 14 March 1997 |
Docket Number | Nos. S-95-996,S-95-997,s. S-95-996 |
Citation | 252 Neb. 51,560 N.W.2d 157 |
Parties | STATE of Nebraska, Appellee, v. Thomas M. NISSEN, also known as Marvin T. Nissen, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. In connection with questions of law, a reviewing court has an obligation to reach its own conclusion independent of those reached by the lower courts.
2. Courts: Jurisdiction. While not a constitutional prerequisite for jurisdiction of courts of the State of Nebraska, existence of an actual case or controversy, nevertheless, is necessary for the exercise of judicial power in Nebraska.
3. Moot Question. The doctrine of mootness is a key component in determining whether an actual case or controversy exists.
4. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.
5. Constitutional Law: Search and Seizure. The provisions of both U.S. Const. amend. XIV and Neb. Const. art. I, § 7, protect against unreasonable seizures.
6. Criminal Law: Arrests: Probable Cause. An arrest without a warrant can be valid only if there existed at the time probable cause to believe both that a felony has been committed and that the person arrested committed it.
7. Police Officers and Sheriffs: Arrests: Warrants: Proof. When law enforcement personnel have acted without a warrant, the burden is upon the State to prove that the arrest was reasonable.
8. Motions to Suppress: Probable Cause: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress, an appellate court reviews the ultimate determination of probable cause de novo and reviews the findings of fact made by the trial court for clear error, giving due weight to the inferences drawn from those facts by the trial court.
9. Police Officers and Sheriffs: Arrests: Probable Cause. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant.
10. Police Officers and Sheriffs: Arrests: Probable Cause. Probable cause for a warrantless arrest is to be evaluated by the collective information of the police engaged in a common investigation.
11. Constitutional Law: Arrests: Search and Seizure. An arrest in reality effected as a pretext to search for evidence is unreasonable under the 4th and 14th Amendments to the U.S. Constitution.
12. Police Officers and Sheriffs: Probable Cause. Police conduct justified on the basis of probable cause is not invalidated by ulterior motives.
13. Confessions: Appeal and Error. The voluntariness of a statement is to be tested by looking at all the circumstances, and the finding of the trial court will not be set aside unless clearly erroneous.
14. Confessions: Appeal and Error. In determining the voluntariness of a statement, 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.
15. Motions to Suppress: Confessions: Police Officers and Sheriffs. A statement must be suppressed if it is obtained by offensive police practices or is obtained under circumstances in which the free choice of the defendant was significantly impaired.
16. Police Officers and Sheriffs: Confessions: Evidence. Mere deception will not render a statement involuntary or unreliable; the test for determining the admissibility of a statement obtained by policedeception is whether that deception produced a false or untrustworthy confession or statement.
17. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of an abuse of discretion.
18. Trial: Judges: Evidence. A trial judge should carefully refrain from expressing any opinion of or commenting on the evidence.
19. Trial: Judges: Witnesses: Juries. When the trial judge affects the credibility of a witness, either negatively or positively, the judge invades the province of the jury.
20. Trial: Judges: Evidence: Witnesses: Juries. As a general rule, it is the duty of the trial court to abstain carefully from any expression of opinion or comment on the facts or evidence, not only in its charge to the jury, but also on the examination of witnesses and otherwise during the course of the trial.
21. Rules of Evidence. In proceedings where the statutes embodying the rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.
22. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence erroneously admitted is cumulative and other relevant evidence properly admitted, or admitted without objection, supports the finding of the trier of fact.
23. Witnesses: Words and Phrases. For the purpose of Neb.Rev.Stat. § 28-919 (Reissue 1995), a witness is anyone who has knowledge of a relevant fact or occurrence sufficient to testify in respect to it.
24. Trial: Judges: Juries. It is the duty of a trial judge to see to it that the members of a jury are protected from outside influences and kept safe.
25. Criminal Law: Trial: Jurors: Presumptions: Proof. When an improper communication with a juror or jurors is shown to have taken place in a criminal case, a rebuttable presumption of prejudice arises, and the burden is on the State to prove that the communication was not prejudicial.
26. Trial: Jurors: Witnesses: Verdicts. Unauthorized communications between jurors and third persons or witnesses during the course of the jury deliberations are absolutely forbidden and invalidate the verdict unless their harmlessness is made to appear.
27. Constitutional Law: Double Jeopardy. The constitutional prohibition against double jeopardy not only protects against a second prosecution for the same offense after acquittal or conviction, but also protects against multiple punishments for the same offense.
Peter K. Blakeslee, Lincoln, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
The plaintiff-appellee, State of Nebraska, charged the defendant-appellant, Thomas M. Nissen, also known as Marvin T. Nissen, in case No. S-95-996 with three counts of murder in the first degree, in violation of Neb.Rev.Stat. § 28-303 (Reissue 1995), and in case No. S-95-997 with burglary, in violation of Neb.Rev.Stat. § 28-507 (Reissue 1995). The cases were consolidated for trial, and pursuant to verdict, Nissen was thereafter adjudged guilty in the first case of one count of murder in the first degree and two counts of murder in the second degree, in violation of Neb.Rev.Stat. § 28-304 (Reissue 1995), and in the second case, of burglary. He was thereafter sentenced to imprisonment for life for each of the murders, the sentences to be served consecutively; to pay a fine of $25,000; and to imprisonment for a period of 20 years for the burglary, said sentence to be served consecutively to those imposed in the first case.
On December 25, 1993, one "Brandon," while at the home of Linda Gutierres, complained of having been assaulted to Chief Norman Hemmerling of the Falls City Police Department, who had responded to a call from one of Brandon's acquaintances. Brandon was not previously unknown to law enforcement personnel. She had been cited for forgery in Lancaster County, and a forgery charge was currently pending against her in Richardson County. In addition, she had falsely identified herself in traffic stops as Charles Brayman.
Seeing injuries consistent with a physical assault, Hemmerling had Brandon transported to a local hospital, where it was learned that Brandon was a female, Teena Brandon. At this point, Brandon complained that she had been sexually assaulted and kidnapped by Nissen and John Lotter. Although evidence suggesting a sexual assault on Brandon was discovered, and notwithstanding that on December 28, Nissen admitted that he had physically assaulted her, no charges were filed against either Nissen or Lotter.
On December 31, Brandon and two others, Lisa Lambert and Phillip DeVine, were found dead at Lambert's Richardson County farmhouse. All three had been shot, and Brandon had been stabbed as well.
Reflecting on the investigation of Brandon's claims concerning the assault upon her, Assistant Chief John Caverzagie and other law enforcement personnel went to Nissen's house and arrested both Nissen and Lotter.
In challenging his convictions, Nissen assigns 17 errors, which are summarized as claiming that the trial judge erred in (1) overruling Nissen's amended motion to quash, (2) overruling Nissen's motion to suppress certain evidence, (3) overruling Nissen's motion for mistrial during jury selection, (4) admitting certain evidence, (5) overruling Nissen's postevidence motions to dismiss certain of the charges, (6) improperly instructing the jury, (7) overruling Nissen's motion for mistrial because of misconduct during the jury's deliberations, and (8) imposing an improper sentence for the burglary conviction.
We supply with the analysis of each assignment of error such additional facts as are relevant thereto.
Motion to Quash.
As argued, Nissen urges in the first summarized assignment of error that the trial judge wrongly overruled his amended motion to quash the State's operative information improperly charging the murders under five separate...
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