State v. Wilen

• Decision Date: 07 November 1995
• Docket Number: No. A-95-236,A-95-236
• Citation: 4 Neb.App. 132,539 N.W.2d 650
• Parties: STATE of Nebraska, Appellant, v. Clint Walker WILEN, Appellee.
• Court: Nebraska Court of Appeals

Page 650

539 N.W.2d 650

4 Neb.App. 132

STATE of Nebraska, Appellant, v. Clint Walker WILEN, Appellee.

No. A-95-236.

Court of Appeals of Nebraska.

Nov. 7, 1995.

Syllabus by the Court

1. Criminal Law: Appeal and Error. According to the cases, the purpose of a Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1994) review is to provide an authoritative exposition of the law for use as a precedent in similar cases which may now be pending or which may subsequently arise.

2. Statutes: Appeal and Error. Statutory interpretation involves the resolution of a question of law, regarding which an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

3. Statutes. A statute is open to construction when its language requires interpretation or may reasonably be considered ambiguous.

4. Criminal Law: Statutes. Although a penal statute must be strictly construed, it is to be given a sensible construction, and general terms are to be limited in their construction and application so as to avoid injustice, oppression, or an absurd consequence.

5. Statutes: Legislature: Intent: Appeal and Error. In construing statutes, an appellate court must seek to effect the legislative intent of the statute which may be discerned from the entire language of the statute considered in its plain, ordinary, and popular sense.

6. Police Officers and Sheriffs. An examination of the nature of the acts the officer is performing at the time of the incident as well as the circumstances surrounding those acts and the secondary employment is a well-reasoned analytical approach to the question of whether an off-duty officer working in a secondary employment capacity is performing official duties within the meaning of Neb.Rev.Stat. § 28-930 (Reissue 1989).

7. Police Officers and Sheriffs. Under the common law, a police officer has certain powers, rights, and duties both on and off duty.

8. Police Officers and Sheriffs: Public Health and Welfare. A police officer on off-duty status is nevertheless not relieved of the obligation as an officer to preserve the public peace and to protect the lives and property of the citizens of the public in general. Indeed, police officers are considered to be under a duty to respond as police officers 24 hours a day.

9. Police Officers and Sheriffs. Under the cases, based both on common law and statute, it has been widely held that a police officer is not relieved of his or her obligation to preserve the peace while off duty.

10. Police Officers and Sheriffs. A police officer may provide security to a commercial establishment while off duty and make arrests or take other authoritative action in connection therewith.

11. Police Officers and Sheriffs. A police officer's conduct while off duty can implicate his or her official position, and a police officer is subject to rules that regulate his or her conduct on and off duty, whether in or out of uniform.

12. Police Officers and Sheriffs. Despite personnel manuals that impose certain affirmative duties on a police officer while off duty, certain off-duty activities are unrelated to police officer status or do not resemble the police officer's obligation to keep the peace, and such off-duty conduct is not viewed as engaging in the performance of official duties.

13. Constitutional Law: Police Officers and Sheriffs. In the context of the Fourth Amendment, the Nebraska Supreme Court has stated that it has rejected the notion that solely because one is a police officer, the officer acts in that capacity at all times.

14. Police Officers and Sheriffs. Nebraska case law does not preclude the scenario where an off-duty law enforcement officer witnesses misconduct and the officer engaged in peacekeeping is, therefore, under the circumstances, deemed to be engaged in the performance of his or her official duties.

15. Police Officers and Sheriffs. One can infer from the statutory language of Neb.Rev.Stat. § 16-323 (Reissue 1991) that police officers may, under proper circumstances, exercise their authority and peacekeeping duties at any time.

16. Police Officers and Sheriffs. Neb.Rev.Stat. § 16-323 (Reissue 1991) is compatible with the notion that police officers are expected to exercise their obligations, regardless of whether they are officially on duty.

17. Police Officers and Sheriffs. Nebraska law does not conflict with the common-law view that under proper circumstances, police officers have a duty to preserve the peace and to respond as police officers at all times.

18. Police Officers and Sheriffs. A police officer retains his or her police officer status, even while off duty in a secondary employment capacity, unless it is clear from the nature of the officer's activities that he or she is acting exclusively in a private capacity or is engaging in his or her own private business.

19. Police Officers and Sheriffs: Public Health and Welfare. The practice of municipalities which allows law enforcement officers, while off duty and in uniform, to serve as peacekeepers in private establishments open to the general public is in the public interest. The presence of uniformed officers in places susceptible to breaches of the peace deters unlawful acts and conduct by patrons in those places. The public knows the uniform and the badge stand for the authority of the government. The public generally knows that law enforcement officers have the duty to serve and protect them at all times.

20. Police Officers and Sheriffs: Public Health and Welfare. The U.S. Supreme Court has described police officers as trustees of the public interest.

21. Police Officers and Sheriffs. An official uniform implies an official status, and a defendant will be charged with knowledge of the uniformed officer's official status where circumstances warrant.

22. Police Officers and Sheriffs. The public expects that a uniformed law enforcement officer has the power to enforce the law and to arrest where necessary, powers which a private security guard generally does not possess.

23. Constitutional Law: Double Jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution and of article I, § 12, of the Nebraska Constitution protects an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.

24. Constitutional Law: Double Jeopardy: Juries. Although jeopardy attaches when a jury is impaneled and sworn, the Double Jeopardy Clause bars retrial in criminal prosecutions only where jeopardy has attached and terminated.

25. Double Jeopardy. Events which terminate jeopardy include (1) an acquittal by a judge or jury, (2) a directed verdict of acquittal for insufficient evidence, and (3) a conviction reversed as a matter of law for insufficient evidence.

26. Double Jeopardy. A dismissal at the end of the State's case constitutes an acquittal for double jeopardy purposes.

27. Constitutional Law: Double Jeopardy: Demurrer: Appeal and Error. A demurrer sustained on the basis that the State's evidence was insufficient to establish factual guilt constitutes an acquittal under the Double Jeopardy Clause, barring the State's postacquittal appeal when reversal could result in a second trial or further proceedings for the purpose of resolving factual issues relating to the elements of the charged crime.

Charles J. Stolz, Deputy Sarpy County Attorney, for appellant.

Michael B. Kratville, of Terry & Kratville Law Offices, Omaha, for appellee.

HANNON, IRWIN, AND MILLER-LERMAN, JJ.

MILLER-LERMAN, Judge.

Appellee, Clint Walker Wilen, was charged in the district court for Sarpy County with attempted second degree assault on a police officer. See Neb.Rev.Stat. § 28-930 (Reissue 1989). After the State presented its case against Wilen to the jury, the trial court sustained Wilen's motion for directed verdict and dismissed the charges against Wilen for lack of evidence. This court granted the application of the county attorney to docket the proceedings for review by this court as authorized by Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1994). The State assigns one error in this appeal, which we address in part III of this opinion entitled "Analysis of Challenged Ruling." For the reasons recited below, we sustain the State's exception. Because jeopardy had attached and terminated at trial, our ruling sustaining the State's exception does not permit a reversal.

I. FACTUAL BACKGROUND

On the evening of November 25, 1994, Officer Melanie Whitney, a duly sworn law enforcement officer with the Bellevue Police Department, was working in a secondary employment capacity at the Hardee's restaurant located at 1701 Galvin Road South in Bellevue. This particular Hardee's restaurant had been experiencing problems with fights and with individuals carrying guns and knives on its property. Consequently, Hardee's hired Officer Whitney and other Bellevue police officers to work at the restaurant on the weekends for purposes of maintaining the peace and providing security and protection for its patrons. Officer Whitney received compensation from Hardee's for her services in addition to her regular salary as a Bellevue police officer. Officer Whitney engaged in this secondary employment during hours that she was not regularly scheduled as an "on-duty" officer for the Bellevue Police Department. In accord with her peacekeeping purpose at Hardee's, Officer Whitney dressed in her official police uniform and carried a sidearm, her police badge, and a police radio.

At approximately 9:30 p.m. on November 25, Officer Whitney was inside the Hardee's restaurant when she heard someone cursing loudly over the intercom of the drive-through window. With the assistance of the individual working at the drive-through window, Officer Whitney identified the car in which the individual who was swearing was riding, went outside, and approached the passenger side of the vehicle. The vehicle, described by...