Wednesday, October 26, 2005

NCA affirms assault conviction over appeal that cause for nighttime search warrant (Section 29-814.04) unfounded and that State improperly allowed to withdraw its rest to present final witness; Court rules no-suppression ruling was proper, and even so, Court finds no objection to testimony allowed following overruled motion to suppress; with murky record as to why court allowed state to withdraw rest, with no explicit defense objection, it would not reverse for an improper rest-withdrawal State v. Nunez (Not Designated for Permanent Publication)October 25, 2005. No. A-04-1041.William J. Nunez appeals from his first degree assault conviction following a jury trial in the district court for Douglas County. The district court sentenced Nunez to a term of imprisonment for a period of 10 to 15 years. On appeal, Nunez assigns as error the district court's overruling of his motion to suppress and allowing the State to reopen its case after resting. Nunez also asserts that certain remarks of the prosecutor during the State's opening statement and closing argument were improper and that he received ineffective assistance of counsel in various regards. For the reasons set forth herein, we affirm. the Nebraska Supreme Court in State v. Paul determined that a separate statement of facts showing why the public interest required a search at night was not necessary in an affidavit in support of a nighttime search warrant. Rather, the court concluded that if an "'affidavit, read in a common sense manner and as a whole reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service [of a search warrant], provision for such service in the warrant is proper.'" 225 Neb. at 435, 405 N.W.2d at 610, quoting People v. Mardian, 47 Cal. App. 3d 16, 121 Cal. Rptr. 269 (1975). The court determined that sufficient facts had been stated to justify a nighttime search because the affidavit stated that the officer smelled the odor of marijuana coming from the residence approximately 2 hours prior to when the search warrant was issued. The court reasoned that the odor detected by the officer justified an inference that the marijuana was being consumed and destroyed and that preventing destruction of such evidence of criminal activity was in the public interest. ... In State v. Fitch, 255 Neb. 108, 582 N.W.2d 342 (1998), the Nebraska Supreme Court concluded that no factual basis existed for the issuance of a warrant for a nighttime search. The search warrant in that case was issued on April 12, 1996. The affidavit in support of the warrant stated that within the previous 30 days, individuals with known arrests for drug violations had been frequenting the defendant's residence. The affidavit also stated that some evidence supporting a suspicion of drug activity had been found in the defendant's trash bags on March 21, 28, and April 11. However, the affidavit contained no facts supporting an inference that contraband was being removed or disposed of such that a nighttime search was required. The Nebraska Supreme Court concluded that if § 29-814.04 was to have any meaning relevant to nighttime searches, more must be shown than was provided in that case. The court further held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search under § 29-814.04... Murky record on State's withdrawn restThe record does not reveal why the court allowed the State to reopen its case; nor does it reflect any objections by Nunez' counsel to this procedure. There is nothing in the record to indicate any discussion between the court and the parties' counsel concerning the withdrawal of the State's rest. Following McCowen's testimony, the State again rested. Nunez did not renew his motion to dismiss. ...The record does not reflect that Nunez objected, in closing arguments or otherwise, to the State's being allowed to withdraw its rest and calling McCowen as a witness. During the State's closing argument, the prosecutor referred to Nunez' claim to Ryan that he was sitting in the passenger seat of Zoucha's vehicle. The prosecutor then referred to McCowen's having "showed us the passenger seat of . . . Zoucha's car." The prosecutor then urged the jury to "take a close look" at the exhibits showing Zoucha's car with "blood spatters all over." At this point, Nunez' counsel objected: "There was no testimony that that was blood in the car. There was no witness that was called to testify that what . . . McCowen saw was blood. It was never tested. There's never -- a lab tech, he admitted on cross-examination that he didn't test it." This objection was overruled by the district court and, contrary to Nunez' assertion in his brief, does not reflect an objection to the State's withdrawal of its rest. The failure to make a timely objection waives the right to assert prejudicial error on appeal. State v. Anderson, 269 Neb. 365, 693 N.W.2d 267 (2005). One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error. State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004). Nunez has waived this assignment of error, and we need not consider it further. ... Having found Nunez' assignments of error to be without merit, we affirm

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