State v. Hill

298 Neb. 675

905 N.W.2d 668

STATE of Nebraska, appellee,

v.Teon D. HILL, appellant.

No. S-16-441

Supreme Court of Nebraska.

Filed January 19, 2018.

Gregory A. Pivovar and Jeff T. Courtney, P.C., L.L.O., Omaha, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

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

Heavican, C.J.

I. INTRODUCTION

On December 10, 2013, Virgil Dunn was fatally shot two blocks north of the Spencer Street housing projects in Omaha, Nebraska, in what appeared to be a robbery. On June 4, 2014, Teon D. Hill was charged in Dunn's death.

On February 24, 2016, a jury found Hill guilty of first degree murder and two counts of possession of a deadly weapon by a prohibited person. Hill was found not guilty of use of a deadly weapon (firearm) to commit a felony. On April 28, Hill was sentenced to life imprisonment on the murder conviction and 15 to 20 years' imprisonment on each conviction of possession of a deadly weapon. The latter two sentences were ordered to be served concurrently to each other and consecutively to the life sentence. Hill appeals. We affirm.

II. BACKGROUND

1. FACTUAL BACKGROUND

(a) Homicide

A December 10, 2013, surveillance video shows Dunn making a purchase at a liquor store at 30th and Pinkney Streets in Omaha at approximately 9:54 p.m. The purchase was placed in a white plastic bag. Surveillance video indicates that Dunn then walked toward 28th Avenue. At approximately 10 p.m., a gunshot detection system notified the Omaha Police Department of six shots fired in the area. Officers were dispatched immediately and found Dunn wounded in front of a residence located on North 28th Avenue. Dunn no longer had the plastic bag or his wallet. A baseball cap was lying on the ground approximately 50 feet from Dunn's body; Dunn had not been wearing a baseball cap in the surveillance video. Dunn was taken to the hospital, where he died of gunshot wounds shortly thereafter. There are several witness accounts in the record, but none of the witnesses actually saw the shooting.

That night, Randy Nunn was driving a van full of children from daycare at approximately 10:20 p.m. when he heard gunshots. He slowed the van and saw "two guys coming with hoodies." They were both around "five, seven; five, eight." One person was wearing a black hoodie, and the other had a "white or grayish hoody." One person was carrying a "white grocery bag," but it was difficult to see because "[i]t was dark that night." The person carrying the bag "might have had [a baseball hat]." As the two men were approaching him, Nunn "sped up" because he "didn't know if they [were] getting shot at [or] if they were shooting." Nunn looked in his rearview mirror and noticed that one of the men took longer to cross the bridge, because he "probably ... dropped something." Nunn took the children home and told his girlfriend what he had seen. Nunn's girlfriend then called the police.

Raul Francia testified that he was at home watching television with his brother when, "just before 10 p.m.," he "heard like five, six shots." Francia opened the front door, walked outside, and "saw a guy running ... to the projects." The man was "maybe six-foot tall," "African-American," and wearing "a black hoody or a black jacket" and "a hat maybe."

(b) Arrest

On February 12, 2014, Metro Area Fugitive Task Force officers were conducting surveillance in the area of the Spencer Street housing projects in Omaha, near the location of the December 10, 2013, shooting. Officers were attempting to locate a wanted fugitive, Charles Toles. Toles was described as an "African-American male, five, seven to five, nine; a hundred and sixty pounds." Officers "had been receiving tips that he was frequenting the Spencer West Housing Projects area."

Omaha police officer Jeffrey Gassaway, a member of the task force, testified that while conducting surveillance, he observed a "Ford Taurus driving slowly" with a "black male in the passenger seat who matched the general physical description of Toles," and a female driver. In fact, Hill, and not Toles, was the passenger in the Taurus. Gassaway asked U.S. Marshal Rovance Lewis, another member of the task force, to also follow the Taurus. Gassaway noticed that the Taurus accelerated as the officers began following it, and "the driver went through the stop sign." The driver of the Taurus drove in a "big square" and violated the stop sign at each corner by failing to come to a complete stop. Because the driver violated "at least six traffic control devices," Gassaway activated his vehicle's emergency lights and pulled over the Taurus at 30th and Evans Streets. The driver of the Taurus did not initially pull over in response to the activation of the emergency lights. Gassaway testified that the driver was "actively fleeing from" him and continued to make several turns, but pulled over eventually.

Gassaway and Lewis approached the Taurus simultaneously. As Gassaway approached, he "saw [Hill] reach down briefly." Based on his training and experience, this movement caused Gassaway concern, because "maybe [Hill] was concealing contraband or a weapon." Hill exited the Taurus with his hands up, and Gassaway "was 100 percent positive that it was not ... Toles." When Gassaway observed Hill step out of the car, Gassaway "told him keep your hands in the air, and ... Lewis approached him and took physical hold of him and just escorted him back to the back of the car." Hill disputes that he exited the Taurus voluntarily and contends that the officers "removed [Hill] from the car."¹ Gassaway testified that he "felt that we needed to investigate further based on why this vehicle was fleeing from us and violating traffic control devices." Gassaway proceeded to ask the driver for her identification, driver's license, and vehicle registration. Gassaway observed that there was an infant in the back seat of the Taurus and that the driver was "extremely nervous and agitated," repeatedly asking if she could call her mother.

Gassaway asked the driver if she would give the officers "permission to search the vehicle, and she did." Gassaway "walked over immediately to the area where ... Hill exited, and looked inside the vehicle underneath the seat and saw a handgun." Gassaway left the handgun in place and called the crime laboratory to photograph and collect the handgun. The handgun had six live cartridges in the cylinder. A box with live ammunition and a magazine were recovered from a black purse that was also in the vehicle. However, the handgun was a type of weapon that did not require a magazine for reloading, and the investigator determined that the magazine in the black purse "would belong to something separate" from the handgun found under the seat. Gassaway then requested the other officers who had arrived to place Hill under arrest for possession of a firearm.

(c) Baseball Cap

An Omaha police officer testified that he was dispatched to the location of Dunn's shooting on December 10, 2013, and arrived within "one to two minutes" of dispatch. As the officer was heading north on 28th Avenue from Bristol Street, he "observed something in the street, which, as we got closer, appeared to be a red baseball cap." The cap was "in the middle of the Street on North 28th Avenue ... south of the residence located [on] North 28th Avenue" and about 50 feet from Dunn's body.

Melissa Helligso, a forensic DNA analyst, swabbed the inside of the cap for DNA evidence. She swabbed two different areas: inside the headband area of the cap and inside the front area of the cap. Helligso testified that she utilized "methodology and procedure that includes PCR—STR [polymerase chain reaction short tandem repeat] type of work [that] has been accredited and certified through the ASCLD [American Society of Crime Laboratory Directors] and also subject ... to peer review." For inside the headband area, Helligso "was able to determine that the major DNA profile matches ... Hill at all of the major alleles obtained; therefore, he's not excluded as the major contributor of the DNA tested." Helligso further stated:

The probability of an unrelated individual matching the major DNA profile from the specimen, given that ... Hill expresses this profile, is 1 in 1.94 quintillion, which is 10 with 18 zeros for Caucasians; 1 in 1.94 quadrillion, which is 15 zeros, for African-Americans; and 1 in 26.0 quadrillion for American Hispanics.

In regard to the front area of the cap, Helligso similarly "was able to find that [Hill] was not excluded as the major contributor to the DNA tested." Helligso stated:

The probability that an unrelated individual matching the major DNA profile from this specimen, given that ... Hill expresses this profile, is ... 1 in 802 sextillion, which is 21 zeros for Caucasians; 1 in 391 quintillion, which is 18 zeros for African-Americans; and 1 in 3.78 sextillion for American Hispanics.

(d) Spent Projectile and Jeans

A spent projectile was found within the fabric of Dunn's jacket. Helligso tested a swab of the projectile and determined that a DNA profile consistent with a single male individual was present. Helligso was able to determine that "Dunn is not excluded as the source of the DNA tested." The probability of an unrelated individual matching the DNA profile from the spent projectile, given that Dunn expresses this DNA profile, "is 1 in 344 quintillion for Caucasians, 1 in 108 quintillion for African-Americans, and 1 in 68.0 quintillion for American Hispanics." The spent projectile was thus presumably shot into Dunn and caught in his jacket upon exiting his body. A crime laboratory technician for the forensic investigations services with the Omaha Police Department testified that based on her analysis of the spent projectile at the crime scene and a test fire from the handgun found in the Taurus, the handgun found under Hill's seat fired the spent projectile found in Dunn's jacket.

Helligso performed DNA analysis on...