State v. Lomack

Page 455

545 N.W.2d 455

4 Neb.App. 465

STATE of Nebraska, Appellee,

V.

Terry D. LOMACK, Appellant.

No. A-95-291.

Court of Appeals of Nebraska.

March 26, 1996.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous.

2. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

3. Police Officers and Sheriffs: Arrests: Probable Cause. Probable cause for a warrantless arrest exists where the facts and circumstances within an officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to warrant one of reasonable caution to believe that there was a fair probability that an offense has been or is being committed.

4. Constitutional Law: Search and Seizure: Arrests. A person is seized, or arrested, for Fourth Amendment purposes when, in view of all of the circumstances surrounding the incident, a reasonable person would believe that he or she is not free to leave.

5. Police Officers and Sheriffs: Arrests: Probable Cause. Police can have probable cause for a warrantless arrest based on information from an informant if the information from the informant, when taken as a whole in light of underlying circumstances, is reliable.

6. Police Officers and Sheriffs: Arrests: Probable Cause. The reliability of an informant may be established in four ways: (1) The informant has given reliable information to police officers in the past, (2) the informant is a citizen informant, (3) the informant has made a statement that is against his or her penal interest, or (4) a police officer's independent investigation establishes the informant's reliability or the reliability of the information the informant has given.

7. Constitutional Law: Search and Seizure. Although the determination must be made in light of the fundamental criteria laid down by the Fourth Amendment and in court opinions applying that amendment, the reasonableness of a search is a substantive determination to be made by the trial court from the facts and circumstances of the case.

8. Trial: Judges: Evidence. Disclosure of the identity of an informant is a matter of judicial discretion.

9. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's failure to give a requested instruction, an appellant has the burden of showing that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the tendered instruction.

10. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse to give a defendant's requested instruction where the substance of the requested instruction was covered in the instructions given.

11. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

Appeal from the District Court for Lancaster County: BERNARD J. MCGINN, Judge.

Dennis R. Keefe, Lancaster County Public Defender, and Margene M. Timm, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

SIEVERS, C.J., and IRWIN, and MUES, JJ.

MUES, Judge.

Terry D. Lomack appeals his conviction for unlawful possession of a controlled substance, cocaine, in violation of Neb.Rev.Stat. § 28-416 (Cum.Supp.1994). Lomack asserts that the trial court erred by (1) denying his motion to suppress, (2) granting the State's motion in limine prohibiting Lomack from inquiry and argument as to the identity of the State's confidential informant (CI), (3) refusing to give Lomack's proposed jury instruction on possession of a controlled substance, and (4) finding that Lomack was a habitual criminal.

FACTS

On March 9, 1994, Det. Sgt. Dennis Miller of the Lincoln Police Department received information from a CI that an individual, Terry Lomack, would be coming to Lincoln from Omaha with a quantity of rock cocaine, also known as crack cocaine. The informant did not specify the quantity of cocaine Lomack would be carrying or how he or she knew Lomack. The informant did tell Sergeant Miller that Lomack would be coming to Lincoln shortly, driving a black Ford pickup with the commercial license plate No. 2-29204, and that there would be a passenger in the vehicle with Lomack. Sergeant Miller checked the registration of the vehicle with the license number given and found it to be a blue Ford pickup registered to a Willie Lomack, whose address was determined to be the same as that of the defendant, Terry Lomack.

The CI who provided the information had worked with the Lincoln Police Department on several occasions since 1991. Sergeant Miller testified that past information provided by this CI had resulted in at least 16 felony arrests. On this occasion, the informant was paid for his or her services, but did not receive any benefits in the form of reduced or dismissed charges and was not on parole or probation.

In reliance on the information provided, surveillance was set up to watch for the vehicle described by the informant. The truck was spotted on its way into Lincoln and was eventually stopped at the intersection of 27th and Superior Streets. At the time of the stop, six police officers were present. Officer Clark Wittwer's car was positioned in front of Lomack's pickup, Officer Thomas Ward's vehicle was located behind the pickup, and Sergeant Miller's vehicle was on the left side of the pickup. Also present were Officer William Snoad and an Investigator Gambrell, and an Officer Santacroce soon arrived.

According to the various officers' testimony, the arrest occurred as follows: Officer Ward had followed Lomack once Lomack came into Lincoln, and when the vehicles came to a traffic light and stopped, Officer Ward activated his lights, approached Lomack's vehicle, and was joined by Officer Snoad. Officer Ward asked Lomack for his driver's license, registration, and insurance card. Lomack responded by patting down his pockets and going through a notebook as if looking for identification. When Lomack turned away from the officers and was "messing around" with something on the seat of the pickup, Officer Snoad instructed Officer Ward to order Lomack out of the pickup for safety reasons. Lomack refused to comply with Officer Ward's order, and the officer repeated the order several times. Then Officer Ward, with the assistance of Officer Snoad, pulled Lomack out of the vehicle.

Once Lomack was outside the vehicle, the officers ordered him to place his hands on the "bedrails" of the pickup. Lomack instead leaned over and placed his hands inside the bed of the pickup. Officer Snoad then witnessed Lomack put a small metal pipe inside his mouth. The officers ordered Lomack to spit the item out, which he did after several requests. When Lomack spat the pipe out, Officer Snoad saw a small clear plastic baggie in Lomack's mouth. Officer Snoad ordered Lomack to spit this out also. Lomack did not comply and began struggling with the officers. The officers took Lomack to the ground as he continued to struggle. Officers Snoad, Ward, and Wittwer testified that they each attempted to apply pressure to Lomack's jaw in order to get him to open his mouth, but were unsuccessful. Officer Wittwer then applied a lateral vascular neck restraint. After approximately 5 to 10 seconds, Lomack lost consciousness, and Officer Snoad pulled the plastic baggie out of Lomack's mouth. The baggie was placed into custody and was later determined to contain several rocks of crack cocaine. Lomack regained consciousness 15 to 30 seconds later. There was evidence that there was a small amount of blood around Lomack's mouth following the incident. However, there was no evidence that the bleeding resulted from a serious cut which required medical attention. After regaining consciousness, Lomack was handcuffed and transported to the police department. Although Lomack testified that he vomited as a result of the incident and requested to be taken to the hospital, Lomack admitted that when the police offered to transport him to the hospital, he declined.

According to Lomack's testimony at trial, Willie Rodriguez, the passenger in his vehicle, was Lomack's acquaintance, current coemployee, and former employee. On March 9, 1994, Lomack had received his paycheck 1 day early from GFRC Inc., where both Lomack and Rodriguez were then working. Lomack testified that after work on March 9, Rodriguez asked Lomack for a ride home and then requested a loan of $200 so that Rodriguez could pay it to his brother-in-law. Despite the fact that Lomack had previously loaned Rodriguez $325 which he had failed to pay back, Lomack testified that he agreed to loan Rodriguez the additional $200 upon the promise that Rodriguez would pay Lomack back all of the money owed the following day when Rodriguez received his paycheck, even though Lomack knew that Rodriguez' check would only be approximately $350.

In addition to loaning Rodriguez the additional $200, Lomack gave Rodriguez a ride to Omaha so that Rodriguez could give the money to his brother-in-law. Lomack testified that Rodriguez appeared excited and talkative on the way to Omaha, but was quiet on the way back, saying that he felt sick. When Lomack stopped to get gas on the way to Omaha, Rodriguez made a phone call. Again on the way back from Omaha, Lomack saw Rodriguez place a call. Lomack also...