State v. Valentine
| Decision Date | 29 October 2019 |
| Docket Number | No. A-18-902.,A-18-902. |
| Citation | 936 N.W.2d 16,27 Neb.App. 725 |
| Parties | STATE of Nebraska, appellee, v. Daejerron L. VALENTINE, appellant. |
| Court | Nebraska Court of Appeals |
Thomas C. Riley, Douglas County Public Defender, Omaha, and Jessica C. West, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Following a jury trial, Daejerron L. Valentine was convicted of possession of a deadly weapon by a prohibited person and possession of marijuana. Valentine appeals from his convictions. On appeal, he challenges the district court’s failure to suppress evidence seized during a traffic stop of his vehicle and the district court’s interpretation of Neb. Rev. Stat. § 28-1206 (Supp. 2017), which delineates the elements of the offense of possession of a deadly weapon by a prohibited person. Valentine also argues that the district court erred in giving certain jury instructions and refusing his proposed jury instructions. Following our review of the record, we affirm Valentine’s convictions.
On July 25, 2018, the State filed an amended information charging Valentine with one count of possession with intent to distribute marijuana, in violation of Neb. Rev. Stat. § 28-416 (Cum. Supp. 2018), and one count of possession of a deadly weapon (firearm) by a prohibited person, second offense, in violation of § 28-1206. The charges against Valentine stem from a traffic stop of his vehicle which occurred on October 12, 2017.
On the evening of October 12, 2017, Patrick Dempsey, an Omaha Police Department detective assigned to the "gang suppression unit," was on patrol in the northeast part of Omaha, Nebraska, in a marked police cruiser with his partner. At approximately 10:30 p.m., Dempsey observed the passenger side of a white vehicle driving in front of him near the intersection of 23d and Sprague Streets. Dempsey believed that the tint on the windows of the vehicle was too dark and, thus, constituted a traffic violation. During Dempsey’s trial testimony, he explained that the tint on the rear side windows of a vehicle is permitted to be darker than the tint on the front side windows of a vehicle. As such, he testified that if the tint on the front side windows matches the tint on the back side windows, the tint on the front side windows is probably darker than is permitted. Dempsey observed that the tint on the windows of the vehicle was all the same color and appeared to Dempsey to be darker than is permitted. In addition, Dempsey could not observe anyone in the vehicle because of the dark color of the tint. Dempsey explained that if a vehicle has the correct tint in the front, a person should be able to observe the occupants inside the vehicle through the front side windows.
Because of Dempsey’s belief that the tint on the windows of the vehicle was darker than what is permitted, he initiated a traffic stop. At the point that Dempsey was approaching the vehicle on the driver’s side, he was able to observe that there was only one occupant. That occupant was later identified as Valentine. Valentine rolled down the window on the driver’s side of the vehicle and spoke with Dempsey. While Dempsey was speaking with Valentine, he detected the strong odor of burnt marijuana coming from the vehicle. As a result of Dempsey’s observation, he asked Valentine to step out of the vehicle. Dempsey also asked Valentine if he had been smoking marijuana in the vehicle. Valentine denied smoking marijuana himself, but did admit that he had a friend who had smoked marijuana in the vehicle.
Dempsey conducted a search of Valentine’s person, but did not locate any marijuana. Dempsey then conducted a search of the vehicle. In the center console between the front seats, Dempsey located two baggies of a substance which subsequent testing revealed was marijuana. One baggie contained 18.8 grams of marijuana and one baggie contained 9.196 grams of marijuana. As such, the total weight of marijuana found in the baggies was 27.996 grams, or just under 1 ounce. Also in the center console, Dempsey located "a working digital scale" and two empty baggies similar to those which contained the marijuana.
When Dempsey searched the front passenger door of the vehicle, he located a gun hidden beneath the control panel for the door’s window and locking mechanism. When he searched the trunk of the vehicle, Dempsey located $240 in cash hidden in a tennis shoe and an opened box of baggies which were similar to those which contained the marijuana. After conducting the search of the vehicle, Dempsey tested the window tint and discovered that the front side windows were darker than is permitted by law. Ultimately, Valentine was placed under arrest and transported to police headquarters.
In July 2018, trial was held. During the trial, Dempsey testified regarding the traffic stop and subsequent search of Valentine’s vehicle which had occurred on October 12, 2017. In conjunction with Dempsey’s testimony, the State offered into evidence the video obtained from Dempsey’s "body-worn camera" which depicted the traffic stop and the subsequent search. The video depicts Dempsey’s initial observations of Valentine’s vehicle prior to the traffic stop, his interactions with Valentine, and his detailed search of Valentine’s vehicle. In particular, the video portrays Dempsey’s discovery of the gun which was hidden in the front passenger door. After Dempsey opens the passenger door, he searches a compartment at the base of the door, but finds nothing of evidentiary value. He then pulls, without much force, on the control panel for the door’s window and locking mechanism, and the control panel easily comes off of the door to reveal a "void" in the vehicle’s door. Dempsey testified that "[t]here was nothing attaching [the control panel] other than the cord." Inside the void, a gun is readily visible.
During Dempsey’s trial testimony, he opines that given everything that he found in Valentine’s vehicle, including the marijuana, the gun, the digital scale, the cash, and the baggies, that Valentine intended to distribute the marijuana. Dempsey noted that he did not find any items in the vehicle which would indicate that Valentine, himself, had smoked or was planning on smoking the marijuana.
The State presented evidence at trial to prove that the gun found in Valentine’s vehicle was loaded and in working order. DNA testing conducted on the gun revealed that Valentine could not be excluded as the major contributor to the DNA found on the gun. The probability of an individual not related to Valentine matching the DNA profile from the gun is approximately 1 in 26.8 septillion. The parties stipulated that Valentine has previously been convicted of a felony.
At the close of the evidence, the jury found Valentine guilty of possession of marijuana, less than 1 ounce, a lesser-included offense of possession of marijuana with the intent to distribute, as the State charged in its amended information. The jury also found Valentine guilty of possession of a deadly weapon by a prohibited person. The district court subsequently sentenced Valentine to a $300 fine on his conviction for possession of marijuana. The court found that Valentine’s conviction for possession of a deadly weapon by a prohibited person was a second offense and sentenced him to 20 to 20 years' imprisonment plus 1 day on that conviction.
Valentine appeals from his convictions.
On appeal, Valentine assigns that the district court erred in (1) overruling his motion to suppress evidence seized as a result of the traffic stop because there was not probable cause to stop his vehicle and because the search of his entire vehicle was not reasonable or supported by probable cause; (2) incorrectly interpreting § 28-1206, as it read at the time of his arrest; and (3) giving improper jury instructions.
Prior to trial, Valentine filed a motion to suppress the evidence obtained as a result of the search of his vehicle. After a hearing, where Dempsey testified in detail regarding the traffic stop and the subsequent search of Valentine’s vehicle, the district court denied the motion to suppress, finding that "all of the officers' actions that evening were appropriate and in accordance with Nebraska law." Subsequently, Valentine’s original counsel withdrew from the case and another attorney was appointed to represent him. Valentine’s second attorney filed a motion asking the court to reconsider its ruling on the motion to suppress and to "reopen the evidentiary hearing to allow defense counsel to re-cross examine State’s witnesses and to present ... newly discovered evidence." The district court granted Valentine’s request, and a new evidentiary hearing on the motion to suppress was held.
At the second evidentiary hearing, Dempsey again testified regarding the traffic stop and the subsequent search of Valentine’s vehicle. In addition to the details provided in the background section above, Dempsey provided more specific details at this hearing regarding the search of Valentine’s vehicle. Dempsey explained that he commonly checks the control panel on a vehicle’s doors during his searches because, in his experience, it is common for people to hide drugs or guns in that location. He testified that once that control panel is removed, there is a "little hidden compartment" inside the door. Dempsey also indicated that during the course of the stop of Valentine’s vehicle, he received information from other officers that they had been looking for Valentine because they believed him to be selling marijuana and to be armed with a gun. Dempsey indicated that he did not have this information prior to initiating the traffic stop of Valentine.
At the close of the hearing, Valentine’s counsel argued first that all of the evidence seized during the search of...
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State v. Harris
...Jury Instructions, that instruction is the one which should usually be given to the jury in a criminal case. State v. Valentine, 27 Neb. App. 725, 726, 936 N.W.2d 16 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 2659, 206 L. Ed. 2d 723 (2020). Recently, in both Valentine and in State v. Cas......
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...it on one's person or knowing of the object's presence and having control over the object." See NJI2d Crim. 4.2. In State v. Valentine, 27 Neb. App. 725, 936 N.W.2d 16 (2019), we determined the district court did not err in using a pattern jury instruction defining possession instead of uti......
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...been convicted of a felony." Miller's assignment of error appears to relate to the element of possession. In State v. Valentine, 27 Neb. App. 725, 746, 936 N.W.2d 16, 31 (2019), this court held that the pattern jury instruction provided to the jury in that case correctly defined the term "p......