State v. Stelly
| Decision Date | 13 September 2019 |
| Docket Number | No. S-18-025.,S-18-025. |
| Citation | 304 Neb. 33,932 N.W.2d 857 |
| Parties | STATE of Nebraska, appellee, v. Malik M. STELLY, appellant. |
| Court | Nebraska Supreme Court |
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.
Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
In this direct appeal, Malik M. Stelly challenges his convictions for first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Finding no merit to his assignments of error, we affirm.
On January 11, 2017, at 2:37 a.m., the "ShotSpotter" system in Omaha, Nebraska, indicated shots were fired in the area of 3615 Laurel Avenue. Officers responded to the alert and arrived on the scene within minutes to find D'Angelo Branch lying in a pool of blood on a residential sidewalk. Paramedics determined Branch had no pulse and declared him dead. An autopsy showed he died of multiple gunshot wounds to the head; in total, he sustained 16 wounds to the head and five additional wounds to his lower body.
Several people who lived near the crime scene reported hearing multiple gunshots and seeing a silver Chrysler PT Cruiser driving away from the area. One person described the PT Cruiser as having rust around the wheel wells on the driver’s side in both the front and the back. Surveillance video from a nearby residence showed a silver PT Cruiser in the area during the relevant time.
Officers collected 11 spent casings from a 9-mm firearm from around Branch’s body. They also recovered two cell phones from the crime scene: an LG cell phone that was found in the street about 10 to 15 feet from Branch’s body and a ZTE cell phone that was found in Branch’s pocket.
Later that day, officers obtained a search warrant and extracted data from the LG cell phone found in the street. That data indicated the cell phone belonged to Stelly. After learning Stelly’s address, officers went to surveil his apartment complex. They found a silver PT Cruiser in the parking lot at the complex. The PT Cruiser was registered to Stelly’s friend, Royce White.
While surveilling the apartment complex, officers saw Stelly and White leave in a green Cadillac. The Cadillac was registered to White’s girlfriend. Officers followed the Cadillac and ultimately conducted a traffic stop. Stelly and White were transported to the police station and interviewed. After authorities obtained buccal swabs from each, Stelly and White were released.
A search warrant was then obtained for Stelly’s apartment and the PT Cruiser. During the search of the apartment, officers discovered the keys to the PT Cruiser under some couch cushions. They also found and seized a hat they believed Stelly was wearing during the relevant time period based on time-stamped photographs discovered on Stelly’s social media profile. The search of the PT Cruiser showed it had damage to the wheel wells on the driver’s side. Evidence adduced at trial showed that White had loaned Stelly his silver PT Cruiser before the shooting because Stelly’s car had been in an accident. Stelly’s fingerprint was recovered from the interior doorframe of White’s PT Cruiser.
The LG cell phone found in the street near Branch’s body, and the hat seized from Stelly’s apartment, were examined by a forensic technician for blood and DNA testing. A few spots of blood were found on the underside of the hat brim, and the DNA was compared to known samples from Stelly, White, and Branch. Branch was not excluded as the major contributor to the DNA contained in the blood spots, and the probability of that DNA’s coming from someone other than Branch was 1 in 47.4 nonillion. Stelly was not excluded as the major contributor to the DNA collected from the inside headband of the hat, and the probability of that DNA’s having come from someone other than Stelly was 1 in 1.01 octillion. DNA found on the LG cell phone was tested, Stelly was not excluded as the major contributor, and the probability of that DNA’s having come from someone other than Stelly was 1 in 4.12 sextillion.
Stelly was arrested and charged with first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person.
Before trial, Stelly moved to suppress certain evidence. As relevant to the issues raised on appeal, he sought to suppress evidence obtained from searching the contents of the LG cell phone found near Branch’s body. The LG cell phone was searched pursuant to a warrant which Stelly challenged as insufficient. Specifically, Stelly claimed that the affidavit in support of the warrant, and the warrant itself, both identified the electronic device to be searched as the ZTE cell phone found in Branch’s pocket rather than the LG cell phone that was actually searched.
At the suppression hearing, the warrant and attached affidavit were received into evidence. The affidavit recited in pertinent part:
The affidavit also stated that the electronic device to be searched was in the lawful possession of the Omaha Police Department and was "found in the street at the scene of a homicide and seized as evidence." But elsewhere in the affidavit, the device to be searched was identified as the ZTE cell phone. Likewise, the warrant that was issued identified the ZTE cell phone as the device to be searched. The warrant was issued January 11, 2017, after which the LG cell phone found in the street was searched.
The officer who swore the affidavit testified at the suppression hearing. He noticed, after returning the warrant, that he had "made an error when listing the cell phone itself in the search warrant and the affidavit as far as property being searched." According to the officer, his narrative description correctly referenced the LG cell phone found in the street and explained why law enforcement wanted to search that cell phone, but when identifying the electronic device to be searched, he mistakenly "listed the cell phone that was recovered from the victim himself as opposed to the cell phone that was found in the street." After noticing the error, the officer applied for and obtained another search warrant, this time referencing only the LG cell phone found in the street.
The district court determined that "[b]ased upon review of the search warrant and the [a]ffidavit attached thereto, it is clear that officers were seeking to search the LG phone that was found lying in the street approximately ten feet from the victim’s body." Relying on State v. Kleinberg ,1 in which we held that "an inadvertent defect in a search warrant may be cured by reference to the affidavit used to obtain the warrant if the affidavit is incorporated in the warrant or referred to in the warrant and the affidavit accompanies the warrant," the court found the search of the LG cell phone constitutional and overruled the motion to suppress. Stelly renewed his motion to suppress at trial, and again it was overruled.
The case was tried to a jury over a period of 9 days in October 2017. We summarize only the evidence pertinent to the issues raised on appeal.
On January 10, 2017, the day before Branch was killed, Stelly and White celebrated Stelly’s birthday. Stelly purchased some new clothes, including the hat later found in his apartment. At approximately 8 p.m., Stelly took several photographs with his cell phone and posted them on a social media website. One of these photographs showed Stelly wearing his recently purchased clothes.
Stelly’s cell phone records indicate that from approximately 8:15 p.m. until just before 11 p.m. on January 10, 2017, his cell phone was "pinging off" a cell tower at 33d Street and Laurel Avenue, which was near White’s house and the crime scene. Around midnight, Stelly’s cell phone pinged off a cell tower at 40th and Grant Streets. And finally, between 1:43 and 1:51 a.m. on January 11, Stelly had a text message conversation with the mother of his son in which he stated he was "bored" and "wanna act bad." The shooting occurred at 2:37 a.m. on January 11.
During trial, the State offered several photographs depicting Branch’s body at the crime scene and during the autopsy. Stelly objected to four of the photographs taken at the crime scene on grounds they were "overly graphic" and "redundant." He objected to four of the autopsy photographs on grounds they were "overly gruesome." The court overruled Stelly’s objections and admitted all eight photographs.
At another point during trial, the State identified a string of 12 exhibits, marked as exhibits 94 through 106. There was no exhibit 105 included in the string. After the witness was asked about each of the exhibits, the State offered them. But while reciting the string of exhibits, the State omitted reference to exhibit 103. This oversight was apparently not realized by either the parties or the court. When defense counsel was asked...
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