State v. Brooks , 189 Neb. 592 ( 1973 )

Boslaugh, J.

The defendant appeals from a conviction for unlawful possession of heroin. The assignments of error relate to the ruling on a motion to suppress and misconduct of the prosecuting attorney.

On August 12, 1971, two police officers entered a residence at 1209 North 34th Street in Omaha, Nebraska. The warrant which they held to search the premises at that address did not authorize them to enter the premises without giving notice of their authority and purpose. See § 29-411, R. S. Supp., 1972.

As the officers walked up to the door, they saw the screen door was closed but the door itself was open between 1 and 2 feet. The officers could see a man, later identified as James Horn, and a woman inside the house standing near the door. The woman was. handing money to Horn who was holding five “pipes” or packets of aluminum foil. The officers concluded they were witnessing a sale of narcotics. They opened the screen door, entered the house, and arrested Horn.

After they had entered the house they proceeded to serve and execute the search warrant. The defendant was found in a bedroom on the second floor. An aluminum package containing heroin was lying on top' of a dresser in the bedroom.

The defendant contends that since the officers entered the house without giving notice of their authority and purpose before entering, the search was illegal and his motion to suppress should have been sustained.

The house at 1209 North 34th Street had been under surveillance by the police. The officers had information there was drug traffic in this area; that the defendant rented the property; and that Horn was selling drugs for the defendant. These facts and circumstances, together with what the officers observed through the open door, were sufficient to justify the immediate arrest of Horn without a warrant. A peace officer may arrest a person without a warrant if he has reasonable cause to believe that a felony is being committed or has been committed. § 29-404.02, R. S. Supp., 1972. The exigent circumstances here were sufficient to justify the entry into the house to make the arrest without a prior disclosure of authority or purpose. See, People v. Maddox, 46 Cal. 2d 301, 294 P. 2d 6; Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726. Since their entry into the house was lawful, the officers could then proceed to serve and execute the search warrant.

The alleged misconduct of the prosecuting attorney occurred during the arguments to the jury. In his closing argument the prosecuting attorney made a statement to the effect that “he was personally convinced of the Defendant’s guilt.” The defendant’s motion for a mistrial was overruled and the jury was admonished to disregard the statement.

It is improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his personal belief in the guilt of the defendant unless the belief is expressed as a deduction from the evidence. Wamsley v. State, 171 Neb. 197, 106 N. W. 2d 22. Tlie record does not show that the belief expressed was not a deduction from the evidence, and the trial court indicated that he considered it to be the prosecuting attorney’s “own interpretation of the evidence.” The record does not show the failure to grant a mistrial was erroneous.

During his argument, defense counsel made a statement concerning something the defendant said when the police entered the bedroom. The prosecuting attorney objected to the statement saying: “* * * there is no evidence in the record about Mr. Brooks saying anything, because he did not take the stand.” The defendant objected and moved for a mistrial which was overruled. The jury was directed to disregard the statement and, at the defendant’s request, the jury was instructed to draw no conclusion or inference from the fact the defendant did not testify.

Section 29-2011, R. R. S. 1943, provides that no reference or comment should be made upon the defendant’s failure to testify. Such a comment may be a violation of the federal constitutional rights of the accused. See Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106. The rule is one of long standing in this state and there is no justification for the failure of a prosecuting attorney to abide by it.

The comment in this case was made in connection with an objection and appears to have been inadvertent rather than a deliberate statement made as a part of the argument of the State. The evidence of guilt in this case is clear. We have stated that such a comment is not prejudicial where the evidence of guilt is conclusive. Bruntz v. State, 137 Neb. 565, 290 N. W. 420. Under the circumstances in this case we determine that the denial of a mistrial was within the discretion of the trial court.

The judgment of the district court is affirmed.

Affirmed.