State v. Hill ( 2014 )

Nebraska Advance Sheets
STATE v. HILL 767
Cite as 288 Neb. 767State of Nebraska, appellee, v.
Thylun M. Hill, appellant.
___ N.W.2d ___
Filed August 8, 2014. No. S-13-698.
1. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
2. ____: ____. Abuse of discretion is the proper standard of review of a district
court’s evidentiary ruling on the admission of expert testimony under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993).
3. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrain
from acting, but the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit-
ted for disposition through a judicial system.
4. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
5. Search and Seizure. Application of the good faith exception to the exclusionary
rule is a question of law.
6. Evidence: Proof: Appeal and Error. An appellate court’s standard of review
with respect to a sufficiency of the evidence claim is very narrow, in that the
court must find the evidence to be sufficient if there is any evidence, when
viewed in a light favorable to the prosecution, upon which a rational finder of
fact could conclude that the State has met its burden of proof beyond a reason-
able doubt.
7. Police Officers and Sheriffs: Arrests: Search and Seizure. When a police offi-
cer makes an arrest, in the absence of physical contact, the fact that a reasonable
person would have believed he or she was not free to leave is a necessary, but
not a sufficient, condition for seizure; the subject must also yield to that show
of authority.
8. Constitutional Law: Search and Seizure: Search Warrants: Probable Cause.
The Fourth Amendment to the U.S. Constitution guarantees the right of the peo-
ple to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, and further provides that no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
9. Search Warrants: Affidavits: Probable Cause. A search warrant, to be valid,
must be supported by an affidavit which establishes probable cause.
10. Search Warrants: Probable Cause: Words and Phrases. Probable cause suf-
ficient to justify issuance of a search warrant means a fair probability that contra-
band or evidence of a crime will be found.
Nebraska Advance Sheets
768 288 NEBRASKA REPORTS
11. Search Warrants: Affidavits: Evidence: Appeal and Error. In evaluating the
sufficiency of an affidavit used to obtain a search warrant, an appellate court is
restricted to consideration of the information and circumstances contained within
the four corners of the affidavit, and evidence which emerges after the warrant is
issued has no bearing on whether the warrant was validly issued.
12. Search Warrants. Even when a search warrant is invalid, the exclusionary
rule applies only in those cases in which exclusion will further its reme-
dial purposes.
13. Motions to Suppress: Search Warrants: Affidavits: Police Officers and
Sheriffs: Probable Cause. The good faith exception to the exclusionary rule
provides that in the absence of an allegation that the magistrate issuing a warrant
abandoned his or her detached and neutral role, suppression is appropriate only
if the officers were dishonest or reckless in preparing their affidavit or could
not have harbored an objectively reasonable belief in the existence of prob-
able cause.
14. Motions to Suppress: Search Warrants: Affidavits: Police Officers and
Sheriffs: Evidence. Evidence obtained through the execution of an invalid
warrant may appropriately be suppressed only if (1) the magistrate or judge in
issuing a warrant was misled by information in an affidavit that the affiant knew
was false or would have known was false except for his or her reckless disregard
of the truth, (2) the issuing magistrate wholly abandoned his or her judicial role,
(3) the warrant is based on an affidavit so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable, or (4) the warrant
is so facially deficient that the executing officer cannot reasonably presume it to
be valid.
15. Search Warrants: Affidavits: Probable Cause: Police Officers and Sheriffs:
Appeal and Error. When evaluating whether a warrant was based on an affidavit
so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable, an appellate court should address whether the officer, con-
sidered as a police officer with a reasonable knowledge of what the law prohibits,
acted in objectively reasonable good faith in relying on the warrant.
16. Search Warrants: Affidavits: Police Officers and Sheriffs: Appeal and Error.
In assessing the good faith of an officer’s conducting a search pursuant to a war-
rant, an appellate court must look to the totality of the circumstances surrounding
the issuance of the warrant, including information possessed by the officers but
not contained within the four corners of the affidavit.
17. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), jurisprudence, the trial
court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an
expert’s opinion.
18. Homicide: Intent: Time. To commit first degree murder, no particular length
of time for premeditation is required, provided that the intent to kill is formed
before the act is committed and not simultaneously with the act that caused
the death.
Nebraska Advance Sheets
STATE v. HILL 769
Cite as 288 Neb. 767Appeal from the District Court for Douglas County: Leigh
Ann R etelsdorf, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Kelly M. Steenbock for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
I. NATURE OF CASE
Thylun M. Hill appeals from his conviction of first degree
murder. Hill argues that evidence found on his person the night
of the murder should have been suppressed because he was
seized the moment officers encountered Hill in the street, even
though he fled. Hill argues that evidence found where he lived
should have been suppressed because the affidavit in support of
the search warrant was so lacking in indicia of probable cause
that it was wholly unreasonable for the executing officer to
presume it to be valid. Hill argues that the court should have
suppressed expert testimony and exhibits relating to Omaha’s
“ShotSpotter” system and its detection of the gunshots that
killed the victim, because the testing of the accuracy of the
system was inadequate. Finally, Hill alleges that the evidence
presented at trial was insufficient to support his conviction.
We affirm.
II. BACKGROUND
Hill was convicted, among other crimes, of first degree mur-
der in connection with the shooting death of an acquaintance of
Hill’s on the night of February 18, 2012. Hill made three pre-
trial motions to suppress evidence, all of which were denied.
1. Motion to Suppress R esults
of Search of P erson
First, Hill moved to suppress all evidence gained as a result
of the alleged illegal search of his person on the night of the
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770 288 NEBRASKA REPORTS
shooting. The motion alleged that the officers who appre-
hended Hill lacked reasonable suspicion sufficient to justify a
stop and frisk under Terry v. Ohio1 and that the search was not
incident to a lawful arrest.
At the hearing on the motion, Officers Mickey Larson
and Jeff Wasmund described the circumstances surrounding
their encounter with Hill on the night in question. Larson
and Wasmund testified that at approximately 10:41 p.m. on
February 18, 2012, they were in their police cruiser and Larson
was pulling the cruiser out of the lot of the northeast police sta-
tion, located between North 30th Street and North 31st Avenue.
They were traveling in an all-black gang unit cruiser. The
cruiser did not have emergency lights on top, but was marked
in large print as Omaha Police on the sides. The officers were
wearing tactical vests also marked “POLICE,” but otherwise
were not wearing uniforms.
Almost immediately, both officers heard what sounded like
gunshots. They explained that it was clear to them that the
shots had been fired nearby. Wasmund was “very confident”
that the gunshots had come from the west; he was less certain
that they also came from the south. The officers headed one-
half block west to 31st Avenue and then turned south.
The officers radioed the precinct to determine if the
ShotSpotter detection system was able to pinpoint a more
precise location for gunfire. As will be described in more
detail below, the ShotSpotter system uses microphones and
a global positioning system (GPS) to pinpoint the time and
location of sounds consistent with gunshots in the area cov-
ered by the system. The ShotSpotter soon gave the officers
an address on North 31st Avenue about 21⁄2 blocks north of
the police station. Thus, while the officers had been correct
that the gunfire originated west of their original location, the
ShotSpotter indicated the shots originated from the northwest,
not the southwest. The officers had traveled only about two
blocks south on North 31st Avenue when they turned around
and headed north.
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Nebraska Advance Sheets
STATE v. HILL 771
Cite as 288 Neb. 767The officers arrived at the address indicated by the
ShotSpotter and parked their cruiser in the middle of the street.
Only 1 minute had passed since the shots had been heard.
About the same time the officers were stopping in front of
the house identified by the ShotSpotter as the source of the
gunfire, the officers observed a male rounding the corner at the
end of the block and heading down the middle of North 31st
Avenue directly toward them. This man was later identified as
Hill. The officers noted that Hill was the only civilian the offi-
cers had seen in the area since they heard the gunshots. They
sought to determine whether Hill was the shooter, a victim, or
a witness to the gunshots.
Both officers testified that they stepped out of their vehi-
cle and shined the vehicle spotlight in Hill’s direction. They
then announced, “‘Omaha police.’” During cross-­ xamination,
e
Larson was asked whether they had yelled, “‘Omaha police,
stop,’” when they exited the vehicle. Larson answered
“[u]h-huh,” but almost immediately thereafter, when defense
counsel asked Larson to clarify whether they had ordered Hill
to “stop” during their initial encounter with Hill, Larson indi-
cated that they did not; they “just announced ‘Omaha police.’”
Later at trial, Larson clarified that he announced only “Omaha
police” and that he used a “normal tone of voice.”
The officers did not have the emergency lights on. Hill
paused. The officers did not observe a weapon on Hill, and
they began to walk in Hill’s direction. The officers did not have
their weapons drawn at that time.
Hill immediately turned around and fled, running north-
bound. The officers ran in pursuit, drew their weapons, and
advised Hill that “we were police officers and you need to
stop running.”
Hill attempted to hurdle the white picket fence of a nearby
house and tripped. Hill broke the top of a few of the pickets
and hit the ground. The officers, trailing close behind, observed
at that time a black revolver fall out from somewhere on Hill’s
person. Hill picked up the gun and began running again before
the officers could catch up to him. The officers thereafter fired
at Hill, and he was apprehended.
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Numerous additional officers arrived at the scene almost
immediately, and Hill was placed under arrest. Several of these
officers also testified at the hearing on Hill’s motion to sup-
press. The officers described that they began searching Hill to
determine if he had a weapon and whether he had been shot.
The officers conducting the search emptied Hill’s pockets. The
items in Hill’s pockets included paper, a wallet, and some latex
gloves. A short while thereafter, officers discovered the dis-
carded firearm in the path of Hill’s flight from the police. They
also discovered the victim, whose body was located behind the
house identified by the ShotSpotter as the source of the gun-
shots heard by Larson and Wasmund.
The court denied the motion to suppress. The court found
that the officers had yelled for Hill to stop only after he began
running away. The court reasoned that Hill was not “seized”
until he was physically apprehended and subdued by the pur-
suing officers. Therefore, the court did not analyze whether
the officers had reasonable suspicion prior to that time. The
court found that by the time Hill was apprehended, which was
when he was placed under arrest, the officers knew that Hill
was in the area of the shooting at the time of the shooting and
also that he had a gun and had fled from police. The court
concluded that such information not only provided reasonable
suspicion, but also probable cause for Hill’s arrest. The court
concluded that the search of Hill’s person was proper incident
to Hill’s arrest. Furthermore, the court noted that the firearm
had not been seized from Hill, since he had discarded it before
any seizure of his person.
2. Motion to Suppress R esults
of Search of Home
Hill moved to suppress the evidence found in the apartment
where he was living at the time of the shooting. In particular,
he sought to suppress bullets found in the bedroom where he
slept, which a ballistics expert connected at trial to the bullets
used in the shooting of the victim. Hill alleged that the affida-
vit in support of the search warrant, made by Officer Thomas
Queen, lacked probable cause.
Nebraska Advance Sheets
STATE v. HILL 773
Cite as 288 Neb. 767Queen, of the homicide unit of the Omaha Police
Department, completed the affidavit for a warrant to search
the apartment where Hill was receiving his Department of
Labor benefits. In the affidavit, Queen averred that he had
reason to believe ammunition, companion equipment, venue
items, and other items of evidentiary value “to the homicide
that occurred on the 18th day of February 2012 at 2240 Hours
at [the address]” would be found at the apartment. The affi-
davit then explicitly set forth as grounds for the issuance of
the warrant:
On Saturday, February 18th, 2012 at about 2240 Hours
officers of the Omaha Police Department were in the
area of 31 Avenue and Meredith Avenue Omaha, Douglas
County, Nebraska, when they heard several gunshots
close by.
Shortly after the shots Officers observed a party in the
same area and attempted to make contact with him. The
party ran from officers and dropped a R.G. Industries .38
caliber revolver. The party was apprehended and identi-
fied as Thylun M. HILL.
Shot Spotter was checked and it indicated that the shots
were fired in the back yard of [address]. Officers went to
that location and found a party deceased from apparent
gunshot wounds.
A data check showed that Thylun M. HILL was con-
victed of 1st Degree Manslaughter in Hennipin, Minnesota
on April 16th, 1998[.]
A check of Department of Labor records showed that
Thylun M. HILL was receiving benefits at [address]
and was scheduled to receive those benefits up through
October 27th, 2012 at that address.
It is the belief of Officer Thomas QUEEN #1182 of
the Omaha Police Department that, should this warrant
be issued, the listed items would be recovered from the
listed address.
The county court judge signed the warrant, and Queen testi-
fied that he executed the warrant in good faith, believing it
to be valid. At the apartment, officers seized 37 live rounds
Nebraska Advance Sheets
774 288 NEBRASKA REPORTS
of .38-caliber ammunition inside a knit glove located inside a
gray bag in the bedroom where Hill slept.
The trial court denied the motion to suppress. The court
agreed with Hill that certain information was missing from the
search warrant affidavit. Most notably, the court found that the
affidavit did not specify the time of death of the victim or that
the death from apparent gunshot wounds was a homicide. The
court also found missing from the affidavit the explicit allega-
tions that (1) the officers responded to an area within several
houses of where the shots were fired and the victim was
located, (2) the officers arrived in the area within a minute of
the gunshots, and (3) Hill was the only person in the area. The
court said that it could not fill in this necessary factual infor-
mation with commonsense inferences, and, thus, the affidavit
lacked probable cause.
Nevertheless, the court found that the officers acted in
good faith when relying on the warrant and that therefore, the
motion to suppress should be denied. The court noted, among
other things, that Queen had knowledge of all the facts missing
from the affidavit that would support probable cause. Because
it was objectively reasonable for Queen to rely on the warrant,
the court found no basis for suppression of the evidence.
3. Daubert Motion in Limine
Finally, Hill filed a pretrial motion in limine under Daubert
v. Merrell Dow Pharmaceuticals, Inc.,2 stating that he ques-
tioned whether proposed witness Paul Greene qualified as an
expert; “whether the reasoning and methodology used by the
State’s witness to draw conclusions, inferences, and locations
regarding the ability to triangulate noises using a so-called
‘shot spotter’ is valid”; and whether the proposed testimony
was relevant and more probative than prejudicial.
At the hearing on the motion, Greene testified he is an
ex-Marine and the lead customer support engineer at SST,
Inc. SST sells a product called the ShotSpotter to cities across
the country. Greene stated he has experience in hearing and
2
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
Nebraska Advance Sheets
STATE v. HILL 775
Cite as 288 Neb. 767recognizing gunshot sounds and in the information technol-
ogy system design and operation of the ShotSpotter. The
ShotSpotter is an acoustic gunfire detection and location sys-
tem of GPS-enabled microphones placed in various locations
of a municipal area. SST has been in existence since 1995 and
has been selling and maintaining ShotSpotter systems since
1996. In the summer of 2011, SST installed a ShotSpotter sys-
tem in northeast Omaha.
On February 18, 2012, the ShotSpotter system in Omaha
consisted of approximately 80 sensors, spaced roughly 400
to 500 meters apart. Each sensor has four GPS-enabled
microphones. The digital signal processors of the sensors
measure sound input to determine if the sound meets 28 dif-
ferent audio characteristics of “impulsive audio pulses,” or
a “bang, boom, or pop,” and could thus be categorized as a
possible gunshot.
If the sound meets the preprogrammed criteria for a pos-
sible gunshot, the system transmits the information to a cen-
tral location server, which uses triangulation to pinpoint the
latitude and longitude of the sound and uses a process called
“geolocation” to place that location on a map.
Incident review staff in California then quickly look at the
audio waveform and listen to a recording of the event to dis-
cern if it is a false positive for a possible gunshot. Once the
incident review staff rule out a false positive, they send an alert
to the police dispatchers.
Greene testified that the incident review staff are specially
trained in recognizing the audio waveform characteristics of
gunfire and in recognizing the sound of gunfire. SST requires
the staff to be able to correctly identify 80 percent of 500
audioclips during performance testing.
Greene explained that the science behind the ShotSpotter
system has been recognized for decades:
The principles — the mathematical principles used for
the triangulation, the location of the event or object we
would call trying to locate an unknown point using two
or more known points, the mathematics behind that are
actually very old. The practical application of it, you
know, in the use of technology is a little more recent,
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776 288 NEBRASKA REPORTS
but still fairly old. Came about with the advent of World
War I and sonar. Since then, seismologists use the same
mathematics, the same techniques to determine the epi-
center of earthquakes. It’s still used by the Navy in sonar
applications. It’s used in space as well.
Greene described that the ShotSpotter system has “multiple
redundancy” of the sensors, such that losing power on an indi-
vidual basis does not detract from the accuracy of the array.
Greene testified that in order to triangulate a gunshot, only
three sensors are required to actually hear and participate in the
incident. A fourth sensor is used for confirmation information
in the event of a single gunshot. When there are multiple shots,
the repetition of the pulse data serves as its own confirmation.
The GPS satellites are synchronized down to a thousandth of
a second from the atomic clock at the National Institute of
Standards and Technology in Boulder, Colorado.
Greene testified that the official margin of error for the loca-
tion of detected gunfire is a 150-foot radius, but that they regu-
larly achieve accuracy of a radius of 10 or 20 feet or better.
The ShotSpotter guarantees that it will give a correct location,
within this margin of error, for 80 percent of detectible outdoor
gunfire in the system area. Gunfire that is silenced or masked
by other sounds is not considered detectible.
When the system was installed in 2011, SST performed a
live fire test that verified the accuracy of the system. Greene
stated that an SST project manager was present during this test-
ing. SST has not performed such a test since that time. Greene
explained, however, that SST “monitor[s] for sensor health
constantly.” The sensors self-calibrate every 48 hours, and if a
sensor does not self-calibrate, SST is automatically notified. In
addition, each sensor sends a “heartbeat pulse” once every 30
seconds. In fact, each GPS sensor, as well as each of the four
microphones attached to it, independently communicates with
the ShotSpotter server about its health.
When enough sensors lose network communication with the
system, SST dispatches a technician to replace all of the inac-
tive sensors. At the hearing on the motion in limine, Greene
testified that SST generally dispatches a technician when the
active sensor count is 90 percent or less. At trial, Greene
Nebraska Advance Sheets
STATE v. HILL 777
Cite as 288 Neb. 767elaborated that SST’s written policy guarantees that SST will
dispatch technicians to replace sensors when SST detects that
the system reaches a “20 percent or better” reduction in sensor
capacity. Greene testified that the system is designed so that it
can lose up to 20 percent of its capacity and still make accu-
rate detections.
Greene created a “ShotSpotter Detailed Forensic Report”
for the shooting on February 18, 2012. He testified that in his
experience, he believed to a reasonable degree of certainty that
the sounds detected by the ShotSpotter were consistent with
gunfire. The report reflects that the alert containing the precise
location of the shots detected on February 18 was given to
Omaha police dispatch 48 seconds after the time the sound was
detected by the ShotSpotter sensors.
Three of the shots were detected by 11 sensors. The last
shot was detected by four sensors. Greene explained that while
there are a multitude of environmental reasons why the num-
ber of sensors detecting an incident might be higher or lower,
changing the direction of fire can have a significant impact
on the number of detecting sensors. At trial, Greene further
explained that if a shot were fired at the ground, fewer sensors
would detect it, because the ground tends to absorb some of the
acoustic energy.
Greene testified that he did not specifically note the number
of sensors in Omaha that were not working at the time of the
incident, because the data in the report was based on the sen-
sors’ actually detecting the gunshots; a compromised sensor
would not produce location detection data. Greene explained
further at trial that even if there had been sensors in the area
not working, that fact would not affect the conclusions drawn
in the ShotSpotter report.
Based on the testimony at the hearing and the arguments
made by counsel, the court characterized the Daubert analysis
in terms of two basic questions: (1) the detection and location
of sound and (2) the classification of that sound as a gunshot.
The court noted that Hill did not challenge the underlying
mathematical and physics principles of triangulation utilized
by the ShotSpotter, but instead challenged the “ShotSpotter’s
testing, positioning, and maintenance of the sensors and the
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778 288 NEBRASKA REPORTS
process of classification of an individual impulsive sound as
a gunshot.”
In a 15-page order denying the motion in limine, the court
found that Greene was qualified as an expert in the design,
installation, and function of the ShotSpotter system and in
gunshot sound recognition. The court also found that the
ShotSpotter system was sufficiently reliable. The court noted
Hill’s argument that because an SST project manager was
present during the original testing of the system, there was no
“blind” testing conducted. But the court reasoned that blind
studies are not necessary when determining if electronic equip-
ment operates properly and that there was no evidence that the
SST project manager somehow influenced the testing results.
The court also found that despite the lack of regularly sched-
uled maintenance, there were sufficient safeguards in the pro-
tocol, which provided for constant monitoring and maintenance
when necessary, to support the reliability of the technology.
Finally, the court found that there was a sufficient factual basis
to support the classification of the sounds as being consistent
with gunfire.
At trial, Hill renewed his objection under Daubert to
Greene’s testimony and to various exhibits concerning the
ShotSpotter detection of the shots fired on February 18, 2012.
Hill did not object, however, to the testimony of Larson,
Wasmund, and other officers concerning their understand-
ing of the ShotSpotter technology and their responses to the
ShotSpotter alerts on February 18.
4. Evidence at Trial
(a) Chase
During the trial, Larson and Wasmund reiterated their
testimony from the suppression hearing. They testified that
at the time of the incident, they were assigned to the north
gang suppression unit. They primarily worked in the area of
the northeast precinct, which was characterized as a “high
crime area.”
Larson and Wasmund testified that as they were leaving the
precinct parking lot, with the vehicle windows rolled partway
Nebraska Advance Sheets
STATE v. HILL 779
Cite as 288 Neb. 767down, they heard “loud” and “distinct” multiple gunshots
nearby. They headed in the direction they thought the shots
came from. They corrected their course about 30 to 40 seconds
later when the ShotSpotter gave them an address.
As they approached the residential address given by the
ShotSpotter, approximately in the middle of the block, Larson
and Wasmund observed Hill as the only civilian in the area.
Hill was rounding the far corner from where the alley ran
behind the residence specified by the ShotSpotter. Hill was
heading in their direction.
The officers parked their vehicle in front of the house.
The officers then shone a spotlight toward Hill, exited their
vehicle, and identified themselves in a normal tone of voice
as Omaha police. The officers did not yet know a homicide
had been committed, and they did not see a gun on Hill. They
sought only to inquire whether Hill was a witness, victim, or
the perpetrator of the shots they heard and which were identi-
fied by the ShotSpotter. Hill paused for a moment, turned,
and fled.
The officers ran after Hill, yelling “Omaha police.” In his
flight, Hill tripped over a picket fence and a gun fell from
his person. At that moment, Wasmund was about 8 feet from
Hill, and Larson was about 5 feet away, and both clearly saw
the weapon.
Hill picked up the gun and resumed his flight. The officers
split up to try to catch him. Wasmund fired a shot at Hill when
he saw Hill change direction and appear to have an open line
of fire at both Larson and Wasmund. Larson heard two shots
and, not knowing if Hill had fired at Wasmund or the other
way around, fired one shot at Hill. Shortly thereafter, Hill
was apprehended.
At least seven other officers arrived almost immediately on
the scene. It was revealed during the defense that one of those
officers was a sergeant who was later under investigation by
the Douglas County Attorney’s office for an unrelated incident
of an indefinite nature and which incident resulted in a recom-
mendation that the sergeant be terminated from the Omaha
Police Department. However, no officers reported observing
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780 288 NEBRASKA REPORTS
the sergeant doing anything out of keeping with standard
Omaha Police Department protocols on the night of February
18, 2012.
Officers who arrived at the scene shortly after Hill was
apprehended emptied Hill’s pockets. The officers discovered
a pair of latex gloves and a camouflage ski mask, as well as
other miscellaneous personal items.
When it was discovered from the search of his person that
Hill no longer carried the gun he had previously dropped
and picked up, the officers searched the area. They found a
revolver lying on the ground in the path of Hill’s previous
flight. Both Larson and Wasmund identified that revolver
as the same one they saw fall from Hill’s person during
his flight.
The officers also went to the backyard of the address iden-
tified by the ShotSpotter. There they found the body of the
victim, lying face down in the backyard. The victim’s pants
were pulled down to his thighs. Near the scene, officers found
a pack of cigarettes, a lighter, two cell phones, a beer can, and
other miscellaneous items eventually identified by nonforensic
means as likely belonging to the victim.
(b) Victim’s Cell Phones
The cell phones, in particular, were identified as belonging
to either the victim or the victim’s mother. The victim’s mother
testified that because the victim’s cell phone did not make tele-
phone calls, the victim often borrowed her cell phone.
Over 6 months had passed before the police were asked by
the Douglas County Attorney’s office to attempt to discover the
telephone records for those cell phones.
By the time the police investigated the telephone logs for the
cell phones carried by the victim, the telephone company con-
nected with the victim’s mother’s cell phone no longer main-
tained the call records for the time of the shooting.
What the mother had identified as the victim’s cell phone
was actually registered to an unrelated party who did not know
the victim. Call records for that cell phone were able to be
obtained. The records showed several calls and text messages
Nebraska Advance Sheets
STATE v. HILL 781
Cite as 288 Neb. 767to the victim on the day of the shooting from a prepaid cell
phone registered to “John Doe” with the address of a U.S.
Cellular store, as well as several telephone calls from the vic-
tim to “John Doe.”
The records obtained closest to the time of the shooting
reflected that at 8:50 p.m. the night of February 18, 2012, the
victim and “John Doe” had a 64-second telephone conversa-
tion. At 10:19 p.m., the victim sent a text to “John Doe.” At
10:26 p.m., the victim called “John Doe” and reached his
voicemail. At 10:27 p.m., the victim again called “John Doe”
and reached his voicemail. “John Doe” thereafter attempted
to call the victim three times in an 11-minute period shortly
after midnight and subsequent to the shooting. There were
no attempted telephone calls from “John Doe” to the victim
after the victim’s death was announced the following day on
the news.
(c) Cause of Death
A pathologist determined that the victim had suffered three
gunshot wounds. One wound entered the right cheek and exited
the left cheek at a straight angle through the sinuses, causing
little damage. The other two shots had entered the victim’s
back and lodged in his body. One entrance wound was located
in the left lateral chest. The bullet had entered at an upward
angle and had punctured the victim’s diaphragm and stomach.
The other entrance wound was located in the middle of the
victim’s lower back. That bullet had also entered at an upward
angle and it punctured the victim’s heart.
The wounds in the victim’s face and chest would not have
been fatal unless left unattended. But the wound to his lower
back rendered the heart nonfunctional as soon as it was hit,
leaving the victim only about 15 to 20 seconds of conscious-
ness thereafter.
The pathologist did not observe any lacerations or trauma,
other than the bullet wounds, to the victim’s body. The bul-
let wounds, because there was no evidence of soot or stip-
pling, were made by a firearm held at a distance at least 12
inches away.
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782 288 NEBRASKA REPORTS
(d) ShotSpotter Report
At trial, Greene reiterated his testimony from the hearing on
the motion in limine. In addition, the detailed forensic report
prepared by Greene to document the incident was entered into
evidence. The report indicated that beginning at approximately
10:40 p.m. on February 18, 2012, four shots were fired in
fairly rapid succession. The shots began either in the alley
or on the side of the alley opposite where the victim’s body
was found. The last shot was located approximately where
the body was found. That last shot occurred after a slightly
longer pause of 3.8 seconds from the preceding shot. From
the first shot to the last, a total of 61⁄2 seconds passed. The last
shot occurred approximately 10 feet from the first three. The
report also identified the correct location of the officers’ shots
in pursuit of Hill, which were time stamped as occurring at
10:43 p.m.
(e) Ballistics Evidence From Gun
The gun that Larson and Wasmund identified as being car-
ried by Hill and discarded during his flight had four spent
casings inside the cylinder. The gun was discovered to have
been registered in 1982 to a woman unrelated to Hill and who
had been deceased since 2000. An expert working in the area
of firearm and toolmark examination for the Omaha Police
Department testified that the bullets found in the victim’s body
were fired from the weapon found in the path of Hill’s flight
and identified by Larson and Wasmund as the gun that Hill had
dropped during that flight. The expert testified that test-fired
bullets from the gun were consistent with the bullets found in
the victim’s body, in both general and class characteristics and
individual and specific characteristics.
(f) Relationship Between Hill and Victim
and Events on Night of Shooting
Testimony at trial established that Hill lived in the same
apartment building as the victim. Hill lived with his girlfriend,
her infant child, and his girlfriend’s brother. According to the
brother, Hill and the victim knew each other. They “hung out
sometimes, drank together, you know, normal neighbor stuff.”
He often heard Hill and the victim in the hallway engaging in
Nebraska Advance Sheets
STATE v. HILL 783
Cite as 288 Neb. 767“casual daily arguments.” The brother described such argu-
ments as common amongst most of the people in the building
and “[n]othing out of the ordinary.”
About 6 weeks before the shooting, the brother had told Hill
he thought the victim was an informant for the Omaha Police
Department. The brother had come to this conclusion because
often he saw the victim with brand-new $100 bills and the vic-
tim acted like he was a “big deal.”
On the day of the shooting, the brother and Hill had been
drinking continuously since the early hours of the morning.
Sometime in the evening, Hill and the brother ran into the
victim in the hall of the apartment building. The brother testi-
fied that Hill and the victim began “[d]runk shit talking.” The
brother did not know what Hill and the victim were arguing
about, but they were yelling at each other.
The brother went back into the apartment. But he continued
to hear loud talking in the hallway. The next thing the brother
remembered, Hill was in the apartment, seemingly upset. Hill
was in the bathroom with the light off either whispering to
himself or breathing heavily. The brother then passed out and
did not wake up until the following morning.
The victim’s mother recalled that at some point in the eve-
ning, there had been a knock on their apartment door and the
victim left. She did not see or hear from the victim after that.
(g) Bullets Found Where Hill Lived
Officers testified that the day after the shooting, they con-
ducted a search of the apartment where Hill lived. In the bed-
room where Hill slept with his girlfriend and the infant, they
found a gray bag. Inside the bag were latex gloves and also a
knit glove with 37 live rounds of ammunition inside it. The
ammunition was head stamped “R-P 38 SPL.” It was the same
as the ammunition used in the shooting.
(h) Telephone Call Made by Hill in Jail
The State presented evidence that while Hill was incarcer-
ated awaiting charges against him, he made a telephone call
in which he told an unidentified person to have his girlfriend
“‘get rid of that bag, that gray bag.’”
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784 288 NEBRASKA REPORTS
(i) No DNA Evidence
There was no DNA or fingerprint evidence found either con-
necting Hill to the shooting or excluding him.
III. ASSIGNMENTS OF ERROR
Hill assigns that the trial court erred when (1) it overruled
his motion to suppress and exclude from use against him at
trial any statements he made and any evidence obtained by
Omaha police officers as a result of the illegal search and
seizure of his person conducted by Omaha police officers on
February 18, 2012; (2) it overruled Hill’s motion to suppress
evidence obtained from the search of the residence where
he lived, because it erroneously concluded that the search
was conducted pursuant to the good faith exception to the
warrant requirement; (3) it overruled Hill’s motion in limine
challenging the admissibility of the State’s expert testimony
regarding the ShotSpotter technology; and (4) it found the
evidence sufficient to support the guilty verdict for first
degree murder.
IV. STANDARD OF REVIEW
[1] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.3
[2] Abuse of discretion is the proper standard of review of
a district court’s evidentiary ruling on the admission of expert
testimony under Daubert.4
[3] A judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to act or
refrain from acting, but the selected option results in a decision
which is untenable and unfairly deprives a litigant of a substan-
tial right or a just result in matters submitted for disposition
through a judicial system.5
[4] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
3
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
4
See State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).
5
Id.Nebraska Advance Sheets
STATE v. HILL 785
Cite as 288 Neb. 767facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.6
[5] Application of the good faith exception to the exclusion-
ary rule is a question of law.7
[6] Our standard of review with respect to a sufficiency of
the evidence claim is very narrow, in that we must find the
evidence to be sufficient if there is any evidence, when viewed
in a light favorable to the prosecution, upon which a rational
finder of fact could conclude that the State has met its burden
of proof beyond a reasonable doubt.8
V. ANALYSIS
Hill challenges four rulings of the trial court. First, Hill
argues that the court should have suppressed the evidence
of the gloves and mask found on his person, because he had
allegedly been stopped without probable cause. Second, Hill
argues that there was no good faith exception to the lack of
probable cause in the affidavit supporting the search warrant
of the apartment where he lived and that the court should have
suppressed the ammunition found there pursuant to the search
warrant. Third, Hill argues that expert testimony and exhibits
concerning the ShotSpotter system, which detected the loca-
tion of the shots fired the night of the murder, should have
been excluded under Daubert.9 Finally, Hill argues that the
evidence at trial was insufficient to support his conviction of
first degree murder.
1. Motion to Suppress R esults
of Search of P erson
We first address Hill’s motion to suppress the search of his
person. According to Hill, he was subjected to a Terry stop
6
State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
7
Id.8
See State v. Matit, ante p. 163, 846 N.W.2d 232 (2014).
9
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2.
Nebraska Advance Sheets
786 288 NEBRASKA REPORTS
“the very moment [the] encounter between [Hill] and the offi-
cers was initiated.”10 Hill describes that he was walking down
the sidewalk when the officers commanded him to stop. Hill
argues that merely walking down the sidewalk in an area where
sounds consistent with gunfire were detected is insufficient to
support reasonable suspicion of criminal activity. Therefore, all
evidence later seized on Hill’s person and statements made by
Hill should have been suppressed.
Hill’s descriptions of the relevant events are not entirely
consistent with the testimony presented at the suppression
hearing, nor with the trial court’s findings in its order denying
the motion to suppress. In any event, we agree with the trial
court that Hill was not seized until he was subdued by police
subsequent to his flight. By that time, there was probable cause
for his arrest.
[7] In California v. Hodari D.,11 the U.S. Supreme Court
held that the defendant who fled from police was not seized
by the officers’ show of authority until he was tackled sub-
sequent to his flight. The Court said that in the absence of
physical contact, the fact that a reasonable person would have
believed he or she was not free to leave is a “necessary, but
not a sufficient, condition for seizure.”12 The subject must
also yield to that show of authority. Thus, the Court held in
Hodari D. that the cocaine the defendant abandoned while he
was running from the police, who were at that time pursuing
him and ordering him to stop, was not the fruit of a seizure.
The defendant’s motion to exclude that evidence was accord-
ingly properly denied. The Court further explained that if the
officers saw the defendant discard the cocaine and recognized
it as such, the cocaine would provide reasonable suspicion for
10
Brief for appellant at 19.
11
California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690(1991). See, also, e.g., State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d
630 (1993); State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673 (1993).
12
California v. Hodari D., supra note 11, 499 U.S. at 628 (emphasis in
original).
Nebraska Advance Sheets
STATE v. HILL 787
Cite as 288 Neb. 767the unquestioned seizure that occurred when the defendant was
eventually tackled.13
We reject Hill’s argument that he was seized before his
flight. Hill did not yield to Larson and Wasmund until after his
flight and the officers discovered Hill was carrying a gun.
Hill does not appear to argue that there was insufficient
cause to seize him after his flight. In any event, we affirm the
trial court’s conclusion that the officers had probable cause to
arrest Hill by the time he was seized. The U.S. Supreme Court,
in Illinois v. Wardlow,14 said: “Headlong flight—wherever it
occurs—is the consummate act of evasion: It is not necessar-
ily indicative of wrongdoing, but it is certainly suggestive of
such.” Headlong flight while carrying a gun in a high-crime
area where shots were heard within the last 3 minutes is suf-
ficiently suggestive of wrongdoing to support probable cause.
We affirm the judgment of the trial court denying Hill’s motion
to suppress the evidence found on Hill’s person.
2. Motion to Suppress R esults
of Search of Home
We next address Hill’s argument that the trial court erred
in failing to suppress evidence found at his residence pursuant
to the search warrant. Hill agrees with the trial court’s assess-
ment of the affidavit in support of the search warrant as lack-
ing in probable cause. But Hill disagrees with the trial court’s
determination that the officers carrying out the warrant acted
in good faith, such that the evidence found during the search
was admissible. The State argues the trial court was incorrect
in finding that no probable cause was stated in the affidavit but
that, in any case, the trial court was correct in finding appli-
cable the good faith exception to the exclusionary rule.
[8] The Fourth Amendment to the U.S. Constitution guar-
antees “[t]he right of the people to be secure in their persons,
13
California v. Hodari D., supra note 11.
14
Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570(2000).
Nebraska Advance Sheets
788 288 NEBRASKA REPORTS
houses, papers, and effects, against unreasonable searches and
seizures . . .” and further provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched, and
the persons or things to be seized.” The Nebraska Constitution
provides similar protection.15
[9,10] The execution of a search warrant without probable
cause is unreasonable and violates these constitutional guar-
antees.16 Accordingly, a search warrant, to be valid, must be
supported by an affidavit which establishes probable cause.17
Probable cause sufficient to justify issuance of a search warrant
means a fair probability that contraband or evidence of a crime
will be found.18
[11] In reviewing the strength of an affidavit submitted as a
basis for finding probable cause to issue a search warrant, an
appellate court applies a “totality of the circumstances” test.19
The question is whether, under the totality of the circumstances
illustrated by the affidavit, the issuing magistrate had a sub-
stantial basis for finding that the affidavit established prob-
able cause. In evaluating the sufficiency of an affidavit used
to obtain a search warrant, an appellate court is restricted to
consideration of the information and circumstances contained
within the four corners of the affidavit, and evidence which
emerges after the warrant is issued has no bearing on whether
the warrant was validly issued.20
[12] But even when a search warrant is invalid under
this test, the exclusionary rule applies only in those cases
in which exclusion will further its remedial purposes.21 The
exclusionary rule is a judicially created remedy designed to
15
See Neb. Const. art. I, § 7.
16
State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).
17
Id.18
Id.19
Id.20
Id.21
See, e.g., United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed.
2d 677 (1984); State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000).
Nebraska Advance Sheets
STATE v. HILL 789
Cite as 288 Neb. 767deter police misconduct.22 It is an “extreme sanction”23 of
“‘last resort.’”24
In Herring v. United States,25 the Court said, “[t]o trigger
the exclusionary rule, police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it, and suf-
ficiently culpable that such deterrence is worth the price paid
by the justice system.” Otherwise, application of the exclu-
sionary rule, as the Court explained in United States v. Leon,26
would offend “basic concepts of the criminal justice system”
and “‘generat[e] disrespect for the law and administration
of justice.’”
[13] The good faith exception to the exclusionary rule
accordingly provides that “[i]n the absence of an allegation
that the magistrate abandoned his detached and neutral role,
suppression is appropriate only if the officers were dishon-
est or reckless in preparing their affidavit or could not have
harbored an objectively reasonable belief in the existence of
probable cause.”27 It is, after all, “the magistrate’s responsi-
bility to determine whether the officer’s allegations establish
probable cause and, if so, to issue a warrant comporting in
form with the requirements of the Fourth Amendment.”28
And, ordinarily, “an officer cannot be expected to question
the magistrate’s probable-cause determination or his judg-
ment that the form of the warrant is technically sufficient.”29
Penalizing the officer for the magistrate’s error does not
“logically contribute to the deterrence of Fourth Amendment
violations.”30
22
Id.23
United States v. Leon, supra note 21, 468 U.S. at 926.
24
Herring v. United States, 555 U.S. 135, 140, 129 S. Ct. 695, 172 L. Ed. 2d
496 (2009).
25
Id., 555 U.S. at 144.
26
United States v. Leon, supra note 21, 468 U.S. at 908.
27
Id., 468 U.S. at 926.
28
Id., 468 U.S. at 921.
29
Id.30
Id.Nebraska Advance Sheets
790 288 NEBRASKA REPORTS
[14] In sum, evidence obtained through the execution of an
invalid warrant may appropriately be suppressed only if (1) the
magistrate or judge in issuing a warrant was misled by infor-
mation in an affidavit that the affiant knew was false or would
have known was false except for his or her reckless disregard
of the truth, (2) the issuing magistrate wholly abandoned his
or her judicial role, (3) the warrant is based on an affidavit so
lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable, or (4) the warrant is so
facially deficient that the executing officer cannot reasonably
presume it to be valid.31
[15,16] Hill asserts that the search warrant affidavit was
so lacking in indicia of probable cause that it was entirely
unreasonable for Queen to have relied upon it. When evalu-
ating whether the warrant was based on an affidavit so lack-
ing in indicia of probable cause as to render official belief in
its existence entirely unreasonable, an appellate court should
address whether the officer, considered as a police officer with
a reasonable knowledge of what the law prohibits, acted in
objectively reasonable good faith in relying on the warrant.32
In assessing the good faith of an officer’s conducting a search
pursuant to a warrant, an appellate court must look to the total-
ity of the circumstances surrounding the issuance of the war-
rant, including information possessed by the officers but not
contained within the four corners of the affidavit.33
Hill asserts that “Officer Queen’s omission from the affi-
davit that [the victim’s] death was an apparent homicide and
that the police assumed [Hill] was involved because he was
in the same area shortly after the apparent homicide was a
glaring mistake.”34 Our review of the affidavit reveals that, in
fact, contrary to Hill’s assertion and some of the trial court’s
31
See State v. Nuss, supra note 16.
32
State v. Davidson, supra note 21.
33
See, United States v. Leon, supra note 21; State v. Davidson, supra note
21; State v. Holguin, 14 Neb. App. 417, 708 N.W.2d 295 (2006).
34
Brief for appellant at 22.
Nebraska Advance Sheets
STATE v. HILL 791
Cite as 288 Neb. 767findings, the affidavit referred in its introductory statements
to a “homicide” at approximately 10:40 p.m. on February
18, 2012, at a stated address. The affidavit further referred
to the fact that Hill was found in that area near the time of
the homicide.
Considering those allegations, as well as the other allegation
in the affidavit, we are certainly not presented here with a case
of a “bare bones” affidavit—one which relies only on uncor-
roborated tips or mere suspicion.35 The affidavit described
how the officers had heard gunshots near their location at
approximately 10:40 p.m. and how they arrived shortly there-
after at the address identified by the ShotSpotter as the loca-
tion of the gunshots. The affidavit described Hill’s flight from
the officers and the fact that he was carrying a gun. Finally,
the affidavit described that the victim had died from appar-
ent gunshot wounds and was found at the address identified
by the ShotSpotter and near where Hill was seen when offi-
cers arrived.
Courts are free to reject suppression motions posing no
important Fourth Amendment questions by turning immedi-
ately to a consideration of the officers’ good faith.36 We affirm
the trial court’s decision that the evidence obtained during the
search of Hill’s residence should not have been suppressed,
because the good faith exception applied. Like the affida-
vit presented in Leon, Queen’s affidavit certainly provided
at least “evidence sufficient to create disagreement among
thoughtful and competent judges as to the existence of prob-
able cause.”37 Thus, as in Leon, the officers’ reliance on the
magistrate’s determination of probable cause was, by defini-
tion, objectively reasonable.38 Therefore, the district court was
correct that application of the extreme sanction of exclusion
was inappropriate.
35
See, State v. Sprunger, supra note 6; State v. Holguin, supra note 33.
36
See United States v. Leon, supra note 21.
37
Id., 468 U.S. at 926.
38
See id.Nebraska Advance Sheets
792 288 NEBRASKA REPORTS
3. Motion in Limine Challenging
ShotSpotter Technology
[17] We turn now to Hill’s argument that the trial court should
have excluded Greene’s testimony that the ShotSpotter detected
gunshots at the specified address near North 31st Avenue on
February 18, 2012. Under our Daubert39/Schafersman40 juris-
prudence, the trial court acts as a gatekeeper to ensure the
evidentiary relevance and reliability of an expert’s opinion.41
The purpose of the gatekeeping function is to ensure that the
courtroom door remains closed to “‘junk science’” that might
unduly influence the jury, while admitting reliable expert testi-
mony that will assist the trier of fact.42 This gatekeeping func-
tion entails a preliminary assessment whether the reasoning or
methodology underlying the testimony is valid and whether
that reasoning or methodology properly can be applied to the
facts in issue.43
In determining the admissibility of an expert’s testimony,
a trial judge may consider several more specific factors that
might bear on a judge’s gatekeeping determination.44 These
factors include whether a theory or technique can be (and has
been) tested; whether it has been subjected to peer review and
publication; whether, in respect to a particular technique, there
is a high known or potential rate of error; whether there are
standards controlling the technique’s operation; and whether
the theory or technique enjoys general acceptance within a
relevant scientific community.45 These factors are, however,
neither exclusive nor binding; different factors may prove more
significant in different cases, and additional factors may prove
relevant under particular circumstances.46
39
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2.
40
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
41
State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
42
State v. Casillas, 279 Neb. 820, 834, 782 N.W.2d 882, 896 (2010).
43
State v. Daly, supra note 41.
44
Id.45
Id.46
Id.Nebraska Advance Sheets
STATE v. HILL 793
Cite as 288 Neb. 767In support of his assertion that the ShotSpotter technology
was not established as reliable under our Daubert/Schafersman
jurisprudence, Hill makes only three arguments: (1) that “blind”
tests of the system have never been performed; (2) that Greene
did not know what percent capacity the Omaha ShotSpotter
system was operating at on February 18, 2012; and (3) that the
SST employees at the incident review center “are ultimately
just people using their own subjective opinions about whether
particular sound files are consistent with gunfire.”47
Hill does not challenge the underlying GPS triangulation
methodology upon which the ShotSpotter location is based.
Thus, insofar as these challenges present Daubert/Schafersman
issues at all, they focus on whether that methodology properly
can be applied to the facts in issue in this case.
We first observe that Hill’s arguments challenging the
ShotSpotter detection in this case are somewhat dubious given
that the sounds of gunshots in the general area identified
by ShotSpotter were simultaneously heard by Larson and
Wasmund, and given that the victim was confirmed shot in
almost the exact location identified by the ShotSpotter as the
source of the shots Larson and Wasmund heard. Indeed, the
principal import of the ShotSpotter evidence in this case appar-
ently was the precise measurement of the timing between the
four shots fired at the victim, and Hill does not challenge the
ShotSpotter’s time stamps.
In any event, we find no merit to Hill’s arguments that the
trial court abused its discretion in denying his motion in limine.
A court performing a Daubert/Schafersman inquiry should not
require absolute certainty.48 Instead, a trial court should admit
expert testimony if there are good grounds for the expert’s
conclusion, even if there could possibly be better grounds for
some alternative conclusion.49 An abuse of discretion in the
trial court’s Daubert/Schafersman determination occurs when a
trial court’s decision is based upon reasons that are untenable
47
Brief for appellant at 25.
48
State v. Daly, supra note 41.
49
Id.Nebraska Advance Sheets
794 288 NEBRASKA REPORTS
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence.50
It was neither untenable nor unreasonable for the trial court
to conclude that the absence of blind testing did not seriously
undermine the reliability of the ShotSpotter system in northeast
Omaha. The court noted that there was no evidence that the
presence of the SST project manager influenced the results of
the electronic equipment, which accurately located the source
of the test gunshots fired by police officers in the project man-
ager’s presence.
Likewise, the reliability of the ShotSpotter technology was
not seriously undermined by Greene’s failure to identify the
percent capacity of the Omaha ShotSpotter system at the time
of the shooting. Greene’s testimony indicated that the system
would have been running at least at an 80-percent capacity,
according to their maintenance protocols. Furthermore, Greene
testified that incapacitated sensors would not report data for
the triangulation of the gunshots and that there were sufficient
sensors reporting data for the shots in question to accurately
triangulate their location.
Finally, the court did not err in admitting the ShotSpotter
evidence over Hill’s objection that SST employees were
unqualified to characterize sounds as being consistent with
gunshots. Greene testified that SST employees were exten-
sively trained in the recognition of sounds consistent with
gunshots. Greene testified as to his experience in identify-
ing sounds consistent with gunshots, as well as the visual
wavelength consistent with gunshots, and he testified to a
reasonable degree of certainty that the sounds detected by
the ShotSpotter at approximately 10:40 p.m. on February 18,
2012, were consistent with gunshots. We also note that the
system itself first identifies the wavelength of the sound as
consistent with gunshots before sending data to the incident
review staff.
None of Hill’s arguments regarding the ShotSpotter system
demonstrate that the trial court abused its discretion in admit-
ting Greene’s testimony or the ShotSpotter report.
50
Id.Nebraska Advance Sheets
STATE v. HILL 795
Cite as 288 Neb. 7674. Sufficiency of Evidence
Lastly, we address Hill’s argument that the evidence was
insufficient to support the verdict of first degree murder. Hill
argues that the evidence supports, at most, second degree mur-
der upon a sudden quarrel.
Hill points out that there were no witnesses to the shooting;
that there was no blood, mudstains, or gunshot residue on Hill;
and that the angle of the gunshot to the victim’s cheek indicates
a taller shooter than Hill. He also argues that the State failed
to establish any motive for the crime. He generally asserts the
police conducted a deficient investigation, pointing out that
one involved officer was under investigation and that the State
failed to pursue DNA testing on certain items or to timely pur-
sue telephone records of the cell phones found on the victim.
Thus, Hill argues that the State failed to discover other possible
suspects. He asserts that the “John Doe” who was calling the
victim the night of the murder may have been the real killer.
Finally, Hill alleges there was evidence of a physical alterca-
tion precluding premeditation: the victim’s pants were pulled
down and he had scrape marks on his body.
All these arguments were made to and rejected by the jury,
which was given a step instruction on second degree murder.
These arguments do not demonstrate that the evidence was
insufficient to support the jury’s verdict. Our standard of
review with respect to a sufficiency of the evidence claim is
very narrow, in that we must find the evidence to be sufficient
if there is any evidence, when viewed in a light favorable to
the prosecution, upon which a rational finder of fact could
conclude that the State had met its burden of proof beyond a
reasonable doubt.51
[18] Hill concedes the evidence at trial established that
Hill was near the crime scene shortly after the officers heard
gunshots and that Hill carried the gun that was used to shoot
the victim. He further concedes that officers subsequently
found ammunition for that weapon in Hill’s residence. The
evidence at trial also demonstrated that several shots were
fired at the victim and that at least two shots were fired at the
51
See State v. Matit, supra note 8.
Nebraska Advance Sheets
796 288 NEBRASKA REPORTS
victim’s back. And, as demonstrated by the ShotSpotter time
stamps, there was more than sufficient time between shots for
Hill to form premeditation. To commit first degree murder,
no particular length of time for premeditation is required,
provided that the intent to kill is formed before the act is
committed and not simultaneously with the act that caused
the death.52
Further, viewing the evidence in a light most favorable to
the prosecution, we find there are explanations consistent with
a finding of first degree murder for the physical state of the
victim and his clothing, the cell phone conversations, and the
angles of the shots. The condition of the victim could have
been the result of running or falling. It is mere speculation
that the unknown “John Doe” was the killer, and any inad-
equacies in the investigation of another possible killer were a
matter for the jury to consider. The angle of the shots, as the
State argued at trial, could have been the result of the victim’s
either being hunched over or on the ground when the shots
were fired. In fact, Greene explained at trial without objection
that the later shots were detected by fewer ShotSpotter sen-
sors, which was consistent with the shots being fired toward
the ground.
Hill assigns that the trial court erred when it found the
evidence was sufficient to support the guilty verdict for first
degree murder. It was conceded at oral argument that the gun
in Hill’s possession was the weapon that killed the victim. The
victim was shot three times, twice in the back and once in
the face. The victim was killed in a dark, secluded alley. The
brother of Hill’s girlfriend testified that earlier in the evening
of the shooting, Hill and the victim engaged in an argument
and were yelling at each other, and that afterward, he remem-
bered Hill was in the apartment seemingly upset. The brother
testified that he had told Hill he thought the victim was an
informant for the Omaha Police Department. If the trier of fact
believed this evidence, these facts would be sufficient for a
conviction of premeditated first degree murder.
52
See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
Nebraska Advance Sheets
STATE v. SMITH 797
Cite as 288 Neb. 797VI. CONCLUSION
We hold that the trial court properly denied Hill’s motions
to suppress and motion in limine, and we find the evidence
sufficient to support the jury’s verdict of first degree murder.
We affirm the judgment below.
Affirmed.
State of Nebraska, appellee, v.
Brian D. Smith, appellant.
___ N.W.2d ___
Filed August 8, 2014. No. S-13-891.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. Judgments: Appeal and Error. When issues on appeal present questions of law,
an appellate court has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below.
3. Constitutional Law: Postconviction: Collateral Attack: Final Orders.
The Nebraska Postconviction Act is the primary procedure for bringing col-
lateral attacks on final judgments in criminal cases based upon constitu-
tional principles.
4. Postconviction: Collateral Attack. If a defendant has a collateral attack that
could be asserted under the Nebraska Postconviction Act, that act is his or her
sole remedy.
Appeal from the District Court for Washington County: John
E. Samson, Judge. Appeal dismissed.
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith and
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
In 1983, when he was 16 years old, Brian D. Smith was
convicted of burglary and kidnapping. He was sentenced to