State v. Short
| Decision Date | 17 September 2021 |
| Docket Number | No. S-19-415.,S-19-415. |
| Parties | STATE of Nebraska, appellee, v. Marcus L. SHORT, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The defendant challenges the district court's denial of a motion to dismiss with prejudice or for absolute discharge based on late disclosures of discovery information resulting in delays the defendant argues implicated his speedy trial rights. The defendant also challenges the admission of evidence at trial obtained from the searches of his residence, cell phones, call records, and cell site location information on the ground that the searches violated his Fourth Amendment rights. Specifically, the defendant asserts that the seizure of his cell phones was pursuant to an unlawful arrest and the information contained thereon would not have been inevitably discovered; the warrant for the search of his residence was based on an affidavit containing falsities and material omissions; the warrants for the searches of his cell phones, call records, and cell site location information were supported by affidavits that failed to support probable cause; and the warrants for the searches of his cell phones, call records, and cell site location information lacked particularity. We affirm.
Marcus L. Short's convictions stem from three separate incidents that were tried together in two trials after the first trial resulted in a mistrial. Following a retrial, Short was convicted of murder in the first degree, a Class IA felony; use of a firearm to commit a felony, a Class IC felony; and two counts of possession of a firearm by a prohibited person, each a Class ID felony, in relation to the death of Garion Johnson.
Short was acquitted on the murder charge relating to the death of Deprecia Neelon and the accompanying use of a firearm to commit a felony charge. Short was sentenced to life imprisonment for Johnson's murder and 49 to 50 years’ imprisonment on each of the other convictions to be served consecutively with the life sentence.
The charges stemmed from three separate shootings on separate days, August 5, 6, and 8, 2015, suspected to be perpetrated by Short, Preston Pope, and Shadow Harlan. Neelon was killed on August 6. Johnson was suspected to be the target in all three shootings and was ultimately killed on August 8. Johnson was Neelon's boyfriend's cousin.
At approximately 6:35 p.m. on August 5, 2015, Johnson was sitting in a white Chevy Impala outside of Neelon's residence when an individual walked up and fired a gun at him. Johnson was able to run away as the shooter chased him. One .45-caliber spent shell casing and a tennis shoe were recovered at the scene. Two witnesses identified a photograph of Pope as the shooter.
In the early evening hours on August 6, 2015, someone intentionally set the outside of Neelon's residence on fire. While Neelon was outside investigating and attempting to put the fire out, she was shot seven times and died at the scene.
That same night, an anonymous tip came in regarding a person named "Shadow" telling people that he had been involved in a shooting a few blocks away. Officers responded to the address provided in the tip, which was a couple blocks from the Neelon residence, and apprehended Harlan as he tried to flee from the residence. Harlan matched witnesses’ descriptions of the shooter and was wearing the same clothes described by witnesses when he was apprehended.
Witnesses observed multiple individuals quickly leave the area after the Neelon shooting in two separate vehicles: an older blue van and a white sedan. Officers later located and attempted a traffic stop of a van matching the description on August 14, 2015. Pope fled the traffic stop and was later arrested in the area where the van was located. The van was registered to Pope's mother, but she told officers that Pope used it.
Evidence recovered at the Neelon residence included a black knit glove and three .45-caliber spent shell casings. A pricetag from a pair of jersey gloves was found in the alley about a block away from the Neelon residence.
A fingerprint lifted from the pricetag was matched to Short. Further DNA testing also revealed that Short could not be excluded as a partial profile contributor to DNA found on the inside of the glove.
Johnson was at the residence of his girlfriend, Mikayla Finley, on Fontenelle Boulevard on the morning of August 8, 2015. Finley told officers that she told Johnson to move her white Chevy Impala into the garage. When Johnson was outside moving the Impala into the garage, Finley heard noises she believed were gunshots. Johnson reversed the vehicle, circled through neighboring yards, and crashed into the garage of a nearby residence, all while shots were being fired at the Impala.
Finley told officers that she saw two males standing around her Impala and that one made eye contact with her. She provided a general description of him to police, but was unable to identify anyone when she was presented with a photographic lineup that day.
Witnesses, including Finley, described the shooters. Both wore dark clothing, and one was described as a Black male, in his late teens, approximately 5 feet 8 inches tall, and dressed in a black hoodie or a black hoodie with a red "N" on it.
A witness reported a suspicious white Monte Carlo with white and blue dealership plates parked in the area that morning on 41st Street. Another witness reported seeing two Black males dressed in black hoodies and black sweatpants walking fast through yards, from the direction of where he heard gunshots and a crash, and subsequently heading south on 41st Street. Seconds later, this witness saw what appeared to be a white Monte Carlo speed north on 41st Street. A police detective lived in that area, and video surveillance from his house showed a white Chevy Monte Carlo that traveled south on Fontenelle Boulevard at 9:48 a.m.
Evidence recovered from the scene included four .45-caliber spent shell casings. Law enforcement believed the shooting was related to the August 5 and 6, 2015, shootings.
Detectives were provided the description of the white Chevy Monte Carlo and Short's name, whose fingerprint matched the fingerprint found on the pricetag near the Neelon residence. At 1:31 p.m., law enforcement arrived at Short's last known address at 4268 Binney Street. There they discovered, parked in the driveway, a white Chevy Monte Carlo with white and blue "paper plates" and in-transits for "M.S." in the window.
Det. Ryan Hinsley drafted an affidavit for a search warrant of 4268 Binney Street, and he joined law enforcement already at the residence at 4:17 p.m. on August 8, 2015, with the signed search warrant.
In the affidavit for the search warrant, Hinsley stated officers had just and reasonable grounds to believe that certain types of property would be found at 4268 Binney Street and requested permission to seize items from the house and from the Monte Carlo in the driveway, as well as the ability to process any areas that may contain a DNA profile or fingerprints.
Items of interest to be seized included venue items identifying those parties either who owned or who were in control of the residence and the white Chevy Monte Carlo with in-transits and dealer paper plates; firearms; ammunition; any companion equipment for firearms; cell phones; computers; audio and video equipment; storage media; and "[a]ny and all clothing or property believed to have been worn and/or used during the commission of the assault, to include, but not limited to a black hoodie with a red ‘N’ on it along with a black bandana with white design and a red bandana."
Pertaining to the just and reasonable grounds for believing such evidence would be found at the residence, the affidavit described:
The affidavit further described:
On Saturday, August 8, 2015, at 0949 hours officers of the Omaha Police Department were called to [a specific address on] Fontonelle [sic] Boulevard, Omaha, NE in regards to a shooting. Upon arrival officers located the victim (later identified as Garion JOHNSON, date of birth 06/ ... /1996) inside the driver's seat of a white 2007 Chevy Impala .... JOHNSON had been shot several times throughout his body and was transported from the scene by medics to Creighton Health Initiative (CHI) Hospital where he later succumbed to his injuries.
It was later elicited through testimony that the dates in the affidavit of the prior incidents were incorrect and that it was actually August 6, 2015, that the Neelon homicide occurred.
The affidavit further described Finley's statements to the investigating officers:
Officers located JOHNSON's girlfriend (Mikayla FINLEY, date of birth 4/ ... /1990) .... FINLEY stated she then heard a series of muffled banging noises coming from the garage area which she believed were gun shots. FINLEY advised she looked out the front window of the residence and saw two unknown males standing around her Impala and JOHNSON in the front seat attempting to back out of the...
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