State v. Benson

305 Neb. 949

943 N.W.2d 426

STATE of Nebraska, appellee,

v.Michael D. BENSON, appellant.

No. S-19-486.

Supreme Court of Nebraska.

Filed May 29, 2020

Beau Finley, Omaha, of Law Offices of Beau Finley, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke, J. Michael D. Benson was convicted of second degree murder, use of a deadly weapon to commit a felony, possession of a deadly weapon by a prohibited person, and two counts of tampering with a witness. On appeal, Benson claims the district court erred in failing to suppress statements he made to law enforcement and cell phone data acquired pursuant to a search warrant. Benson also claims the court committed reversible error by declining to sever the two counts of tampering with a witness from the other charges. Finally, Benson claims there was insufficient evidence to support his convictions. For the reasons set forth herein, we affirm.

BACKGROUND

This case concerns the fatal shooting of James Womack on September 18, 2017. Pursuant to this shooting, Benson was charged by amended information with second degree murder, use of a deadly weapon (firearm) to commit a felony, and possession of a deadly weapon by a prohibited person. The information was amended a second time to add two counts of tampering with a juror, witness, or informant regarding telephone calls made by Benson to witnesses Deja Jefferson and Erica Guitron on February 11 and 12, 2019.

MOTION TO SUPPRESS STATEMENTS

Prior to trial, Benson filed a motion to suppress and exclude any and all statements made by him to officers of the Omaha Police Department (Department) on September 20 and 23, 2017. On September 20, Benson had made statements to Officer Mark Negrete to report that his pickup had been stolen and that he believed it may have been used in the commission of the shooting. Benson argued that his statements on September 20 were inadmissible because he was subjected to custodial interrogation and never informed of his Miranda rights. Benson’s statements on September 23 occurred in an interview with Det. Ryan Davis on the report that his pickup had been stolen. Davis, who had been investigating Womack’s death, had evidence contradicting Benson’s claim that his pickup had been stolen and had evidence that indicated Benson was a party with knowledge of the shooting. While Benson waived his rights following Davis’ reading of a Miranda notice, Benson argued such waiver was not knowingly and freely given.

At a hearing on the motion, Negrete testified he was working patrol in his police uniform on September 20, 2017, and responded to a call concerning an individual wishing to report a stolen vehicle. Negrete first spoke to Sgt. Michael Ratliff of the homicide division, who gave him the assignment. Negrete testified that it was not typical on a day-to-day basis to get assignments from the homicide unit. Ratliff told Negrete that he wanted him to take the report from the vehicle’s owner, advised that the "vehicle may have been involved in a homicide," and mentioned Benson’s name. Ratliff talked to Negrete about Negrete’s body camera recording of his interaction with Benson. Ratliff’s call with Negrete lasted about 3 minutes and occurred about 15 minutes prior to Negrete’s receiving another call from dispatch about taking the report on the stolen vehicle.

When Negrete arrived at Benson’s apartment, he met Benson in the parking lot. Negrete asked for Benson’s name and proof of identification, but Benson did not have his identification, so he turned to get it from his apartment. Before Benson could go to his apartment, however, Negrete continued to ask him questions and get the information about the stolen vehicle while the parties were in the parking lot. Benson reported that at about 2 to 3 a.m. on September 17, 2017, he was visiting someone’s residence and went outside to find his pickup was missing. After taking most of the information for the report, Negrete returned to his patrol vehicle, and Benson went to his apartment, where he located his identification and then provided it to Negrete.

Det. Derek Mois testified that he works on a team within the homicide division led by Ratliff and in which Davis was a member. This team was assigned the Womack homicide, and Davis was its lead detective. Mois explained that through initial investigation, the Department had acquired and released to the public details and photographs of a potential suspect’s vehicle. Pursuant to calls from the public describing the location of a pickup matching the released information, officers were able to locate a pickup matching the description and observed particular identifiers known by the Department. This pickup was registered to Benson and to Jefferson, and Mois explained that Davis obtained a search warrant to collect and process it. The processing of the pickup revealed items including shell casings and a September 18, 2017, receipt from a Hy-Vee grocery store on 96th and Q Streets in Omaha, Nebraska. Mois testified that he conducted followup with Hy-Vee employees and watched Hy-Vee’s video surveillance, which showed Benson with his pickup at around 2 p.m., about 3 hours before Womack was shot.

Mois testified that on September 20, 2017, he fielded a call from a man identifying himself as the owner of the pickup which had been seized the day before. The man was concerned about reports that the pickup had been used in connection with a crime and wanted to report it as stolen. Mois told the man that if he had not been in possession of the pickup and believed it was stolen, he first needed to call the 911 emergency dispatch service to issue a report. The parties did not discuss the matter further, and Mois informed Ratliff of the call once he hung up. Mois explained that at the time of the call, the team only had reason to believe the pickup was potentially involved in a crime and had no other reasons to suspect that Benson, as the owner of the pickup, was himself involved.

Mois described that he was in his Department office on September 23, 2017, when Davis interviewed Benson concerning the pickup and the evidence conflicting with the report Benson gave to Negrete. At that point, Mois explained, investigators suspected Benson’s participation in Womack’s homicide due to the identification of his pickup, evidence found in the search of the pickup, and evidence contradicting Benson’s report that his pickup was stolen. Mois testified that the interview was conducted on the fourth floor of Department headquarters in a homicide interview room. Mois had been in and out of a conference room where detectives could listen in on the interview, and he later reviewed a recording of the interview.

Mois explained that Davis read Benson his Miranda rights and that Benson waived his rights and agreed to speak. Davis initially asked Benson for details surrounding the theft of his pickup, and Benson’s answers did not vary substantively from the report he gave Negrete. After this initial questioning, Davis left the room for around 90 seconds, and when he returned, Mois described that the questioning changed. For about the next 1½ hours, Davis confronted Benson about evidence which contradicted his report and repeatedly brought up the evidence that showed Benson with the pickup at Hy-Vee after the time he reported the pickup had been stolen. Benson was arrested after the interview once Davis had an opportunity to confer with Ratliff and possibly the county attorney’s office.

Davis also testified concerning Benson’s interview on September 23, 2017. According to Davis, Ratliff had informed him earlier in the day that Benson would be coming in for the interview. Davis’ first interaction with Benson was after he had already been led into the interview room by other law enforcement personnel. Davis explained that he performed a pat-down search, introduced himself, and asked Benson identifying information. At this point, Davis read Benson his Miranda rights and Benson waived those rights and agreed to speak with Davis. For around the first 45 minutes, Davis and Benson discussed Benson’s report. However, Davis was aware of Benson’s previous statements to Negrete and the evidence contradicting his allegations and the timeline. Davis left the interview room briefly, and when he returned, his questioning shifted to confronting and questioning Benson about the contradictions, including the evidence about his presence at Hy-Vee with the pickup after he alleged that it had been stolen. Davis explained that this shift in questioning was because he first wanted to give Benson an opportunity to provide clarifying information that explained the contradictions. After the interview, Benson was arrested.

Following the hearing, the district court denied Benson’s motion. The court found Benson’s September 20, 2017, statements to Negrete were admissible because Benson was not in custody when Negrete was taking his report and, as such, Benson was not required to make a knowing and voluntary waiver of his Miranda rights before he could be questioned.

The court also found Benson’s September 23 statements to Davis were admissible because Davis informed Benson of his Miranda rights, Benson waived his rights and agreed to talk to Davis, and there is no requirement that law enforcement officers fully inform a suspect of all the evidence they have before that suspect can make a knowing and voluntary waiver.

MOTION TO SUPPRESS CELL PHONE DATA

Benson filed an additional motion to suppress any and all evidence obtained from the execution of a search warrant of Benson’s cell phone data. Benson argued that the search warrant and application were facially invalid due to their use of an incorrect date and that there was insufficient credible evidence to establish the necessary probable cause.

A hearing was held in which Davis testified that on ...