The Nebraska Court of Appeals here affirms a conviction after a trial over claims of error that the district court erred in (1) denying defendant’s motion to suppress an in-court identification of him; (2) granting the State’s motion for joinder and denying his motion to sever the cases for trial; (3) denying his motion to suppress evidence obtained as the result of a warrantless search of his vehicle; and (4) denying him effective assistance of counsel in pretrial proceedings and at trial, because (a) defendant’s trial counsel ignored the importance of whether his admissions to private citizens were voluntarily made and then, at trial, failed to object to the use of the admissions and (b) during closing arguments, trial counsel failed to object to statements of the prosecutor’s opinion regarding defendant’s guilt.
State v. Sanders (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Identification by Witness:
1. [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. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). 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. Id.
2. [Constitutional Law:] An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). (Unduly Suggestive:) Whether identification procedures are unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures. See id. The factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Id. See, also, Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
3. [In-Court Identification:] An in-court identification may properly be received in evidence when it is independent of and untainted by illegal pretrial identification procedures. Smith, supra. A primary factor in determining whether an independent basis for an in-court identification exists is the opportunity afforded the witness to observe the defendant in circumstances free from taint. Id. (Discrepancies:) Discrepancies and errors in identification where there is an adequate foundation are matters for a jury determination. State v. Evans, 187 Neb. 474, 192 N.W.2d 145 (1971). A witness’ credibility and weight to be given to testimony are matters for determination and evaluation by a fact finder. State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).
Consolidation of Charges:
1. [Appeal and error] A trial court’s ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004). ••• Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).pursuant to Neb. Rev. Stat. § 29-2002(2) (Reissue 1995), “The court may order two or more indictments, informations, or complaints . . . to be tried together if the offenses could have been joined in a single indictment, information, or complaint . . . ” ••• When determining whether the offenses were properly joined, appellate courts in this state undertake a two-stage analysis. See State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997). First, the appellate court must determine whether the offenses are properly joinable under § 29-2002(1). See State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993).If two or more offenses are properly joinable, courts must next determine whether joinder would be prejudicial to the defendant. See id. A defendant opposing joinder of charges has the burden of proving that joinder will be prejudicial to the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). A defendant is not prejudiced by the joinder of charges where the evidence relating to both offenses would be admissible in a trial of either offense separately. Freeman, supra. The evidence will be admitted if it is similar to and reasonably related to the offending conduct and is presented in a manner in which the prejudice does not outweigh its probative value. Id.
2. [Statutes:] Two or more offenses may be joined in the same indictment, information, or complaint if the offenses charged are “of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” § 29-2002(1). However, “[i]f it appears that a defendant . . . would be prejudiced by a joinder of offenses . . . the court may order an election for separate trials . . . .” § 29-2002(3).
Evidence:
1. [Rule 404: Other Crimes, Wrongs, or Acts:] Pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. Evidence of other crimes may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused’s guilt of the offense in question. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). It is within the discretion of the trial court to determine the admissibility of evidence of other wrongs or acts, and the trial court’s decision will not be reversed absent an abuse of that discretion. Freeman, supra.
Motion to Suppress:
1. [Appeal and Error:] A trial court’s ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000). A trial court’s ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo. Id.
2. [Timeliness of Objection:] We recognize that if a party fails to make a timely objection to evidence, the party waives the right to assert on appeal prejudicial error concerning the evidence received without objection. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991). Objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. Id.
3. [Constitutional Law:] The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches and seizures by the government. The Nebraska Constitution has a similar provision. See Neb. Const. art. 1, § 7.
4. [Warrant:] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006). In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement. Id.
5. [Automobile Exception:] “Less rigorous requirements govern searches of automobiles, not only because of the element of mobility, but because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. . . . One has a lesser expectation of privacy in a motor vehicle because its function is for transportation purposes and it seldom serves as one’s residence or as the repository of personal effects. . . . As such, the recognized exceptions to the Fourth Amendment’s warrant requirement as applied to automobiles include probable cause, exigent circumstances, consent, search incident to arrest, inventory search, and plain view.” State v. Scovill, 9 Neb. App. 118, 125, 608 N.W.2d 623, 630 (2000) (citations omitted), quoting State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). ••• When addressing the automobile exception, the U.S. Supreme Court has held: Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s “ready mobility,” an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. . . . More recent cases provide a further justification: the individual’s reduced expectation of privacy in an automobile, owing to its pervasive regulation. . . . If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996) (citations omitted). Since Labron, this state’s appellate courts have not directly addressed whether the automobile exception allows police to search an unoccupied vehicle parked in a residential area; however, in several cases, the U.S. Court of Appeals for the Eighth Circuit has concluded that such searches are permissible under the automobile exception. See, U.S. v. Fladten, 230 F.3d 1083 (8th Cir. 2000) (unoccupied vehicle in driveway); Capraro v. Bunt, 44 F.3d 690 (8th Cir. 1995) (truck parked in defendant’s driveway).
6. [Probable Cause:] Probable cause means a fair probability that contraband or evidence of a crime will be found. Konfrst, supra. While probable cause escapes precise definition, we determine probable cause by an objective standard of reasonableness: whether the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime will be found. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
Ineffective Assistance of Counsel:
1. [Appeal and Error:] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Concerning questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision. State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005).Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
2. [Prejudice:] To state a claim of ineffective assistance of counsel under Strickland, supra, and demonstrate that a conviction must be overturned, a defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). These two prongs may be addressed in either order, but if it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, that course should be followed. See id. To prove prejudice for a claim of ineffective assistance of counsel, the defendant must show there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
Statements:
1. [Voluntariness:] On questioned voluntariness, an accused’s statement, whether an admission or a confession, made to private citizens, as well as to law enforcement personnel, must be voluntary as determined by a court for admissibility and as a fact ascertained by the jury. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). ••• To meet the requirement that a defendant’s statement, admission, or confession was made freely and voluntarily, the evidence must show that such statement, admission, or confession was not the product of any promise or inducement--direct, indirect, or implied--no matter how slight. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992). Whether a confession, statement, or admission was made knowingly, intelligently, and voluntarily depends on the totality of the circumstances. State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993). A preliminary determination by the trial court that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). (Intoxication:) The mere fact of intoxication is not conclusive on the issue of voluntariness of a statement or a consent given by a defendant. Melton, supra. A defendant must be so intoxicated that he is unable to understand the meaning of his statements. Id. (Mental Illness:) Mental illness, like age, education, and intelligence, is a relevant factor in the totality test. State v. Dickson, 223 Neb. 397, 389 N.W.2d 785 (1986). However, no per se rule invalidates the volunteered statement of a mentally ill defendant. Id. Such statements are subject to the general rule that a statement freely and voluntarily given without any compelling influences is admissible. Id.
Closing Argument:
1. It is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his or her personal belief in the guilt of the defendant, unless such belief is given as a deduction from evidence. See State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled in part on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). The remarks of a prosecutor in his or her closing argument which do not mislead and unduly influence the jury and thereby prejudice the rights of the defendant do not constitute misconduct. See State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984).
Date Filed and Case No.: March 27, 2007. Nos. A-05-1415, A-06-523.
Court Appealed From: District Court for Lancaster County: Steven D. Burns, Judge.
Attorneys for the Appeal: Franklin E. Miner for Leon Sanders, Jr., Appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Carlson, Moore, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On 02/27/05 items were stolen from four Lincoln, Nebraska, businesses. The State charged Leon Sanders, Jr. with burglary and theft in two separate informations, alleging that he was responsible for the February 27 crimes. A jury trial was held and the jury returned a verdict of guilty on all counts. A judgment was subsequently entered, and Sanders was sentenced to 1 to 3 years’ imprisonment for theft by shoplifting and 2 to 3 years’ imprisonment for each count of burglary. On 11/03/05, Sanders, filed a notice of appeal in each case, however, because Sanders failed to include the required documents with the notice of appeal in that case (No. CR05-308), an appeal was not docketed. Sanders, with the assistance of new counsel, filed a motion for postconviction relief, claiming that he was denied effective assistance of counsel because his trial counsel failed to perfect his appeal and caused him to lose the opportunity for appellate review. On 04/19/06 after an evidentiary hearing was held, the district court granted Sanders’ request for a new direct appeal which was granted. Sanders appealed to the Nebraska Court of Appeals.
Was there error by the district court in denying Sanders’ motion to suppress a witness’ in-court identification? After the hearing on Sanders’ motion to suppress evidence of identification the district court overruled Sanders’ motion to suppress concluding that “the identification procedure was not ‘unnecessarily suggestive and conducive to an irreparably mistaken identification.’” The court noted that although the witness had a short time to observe Sanders’ face up close in the store, he had additional time to view Sanders in the well-lit parking lot. The court concluded, “There was sufficient observation of [Sanders] by (the witness) that the identification should be submitted to the jury for its consideration.” At trial, the witness identified Sanders as the individual he saw in the Hy-Vee store on the night of the theft. Because the district court’s findings were not clearly erroneous, the Court found that Sanders’ first assignment was without merit.
Did the district court err in granting the State’s motion for joinder and denying Sanders’ motion for severance? The Court noted that here all of the charges brought against Sanders are similar in nature and Sanders was not prejudiced by joinder of the two cases for trial. Because the trial court did not abuse its discretion by joining the cases for trial and Sanders was not prejudiced by joinder of the cases, this assignment is without merit.
Did the district court err in denying Sanders’ motion to suppress evidence discovered during a warrantless search of his vehicle? Sanders argued that the circumstances surrounding the search do not provide grounds for the application of an exception to the warrant requirement. The Court concluded that the automobile exception applies in the instant case as Sanders’ vehicle was readily mobile (even though Sanders was not in it.) The officers’ search was permissible under the Fourth Amendment even though they did not have a search warrant, as long as the officers had probable cause to believe that the search would uncover evidence of a crime. The Court first concluded that Sanders did not waive his right to object to the admission of evidence discovered during the warrantless search of his vehicle. “We do not agree with the State that because Sanders did not object on Fourth Amendment grounds to a police officer’s (Cronin’s) testimony that he (the officer) entered Sanders’ vehicle and pressed his foot on the brake pedal, Sanders waived the right to object to the admission of evidence discovered during the officers’ search of Sanders’ vehicle. Cronin did not offer testimony regarding any evidence discovered as a result of his entry into Sanders’ vehicle and the subsequent search for evidence. Therefore, there was nothing to object to at this point” ruled the Court. Sanders orally requested that the court suppress any evidence discovered by the officers during their search of Sanders’ vehicle. Sanders then objected to Graham’s testimony during trial regarding what she observed after Cronin pressed the vehicle’s brake pedal. Sanders had not previously waived his right to object to this testimony. The Court found the officers had probable cause to enter the vehicle in question to investigate whether all of its taillights were working. The facts and circumstances testified to were sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime would be found in Sanders’ vehicle. The Court also recalled that the driver’s-side door to Sanders’ vehicle was unlocked and was in fact open approximately 1 inch. This fact reinforced their conclusion that the officers did not need a search warrant to enter the vehicle. “Sanders’ failure to secure his vehicle further diminished any expectation of privacy he may have had relating to his vehicle.” Because the officers had probable cause to believe that evidence of a crime would be found in Sanders’ vehicle, this assignment of error is without merit.
Did Sanders trial counsel fail to properly address 1) whether incriminating statements made by Sanders to private citizens were voluntary and, 2) during closing arguments, failed to object to the prosecutor’s statements of opinion regarding Sanders’ guilt. For purposes of this appeal, the Court assumed without deciding that Sanders’ counsel’s performance was deficient and therefore dispose of this assignment by determining whether Sanders was prejudiced by his counsel’s performance.
2. In the instant case, even if Sanders’ counsel had more aggressively challenged the voluntary nature of Sanders’ statements and objected to their admission at trial, there is no reasonable probability that the district court would have determined that these statements were involuntarily made and would have therefore excluded them. During the hearing, each witness testified that she did not coerce or threaten Sanders in order to compel him to make incriminating statements, or make any promises in exchange for the statements. The circumstances surrounding the admissions do not indicate that they were anything but voluntarily made. After considering the totality of the circumstances, the Court concluded that Sanders was not prejudiced by his trial counsel’s performance.
3. In the instant case, the Court determined that the prosecutor’s statements were conclusions that were predicated upon the evidence. While the prosecutor couched her statements in terms of her beliefs, she was merely making deductions from the evidence. The Court further found that there was no evidence in the record that her statements misled or unduly influenced the jury. There was ample evidence of Sanders’ guilt presented during trial, and the trial court instructed the jury that statements made by attorneys were not to be considered as evidence.
Because Sanders was not prejudiced by any alleged misconduct by his counsel, this assignment was found to be without merit.
Conclusion: The Court concluded that Sanders’ assignments of error lacked merit. AFFIRMED.
The Nebraska Court of Appeals here affirms a conviction after a trial over claims of error that the district court erred in (1) denying defendant’s motion to suppress an in-court identification of him; (2) granting the State’s motion for joinder and denying his motion to sever the cases for trial; (3) denying his motion to suppress evidence obtained as the result of a warrantless search of his vehicle; and (4) denying him effective assistance of counsel in pretrial proceedings and at trial, because (a) defendant’s trial counsel ignored the importance of whether his admissions to private citizens were voluntarily made and then, at trial, failed to object to the use of the admissions and (b) during closing arguments, trial counsel failed to object to statements of the prosecutor’s opinion regarding defendant’s guilt.
State v. Sanders (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Identification by Witness:
1. [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. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). 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. Id.
2. [Constitutional Law:] An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). (Unduly Suggestive:) Whether identification procedures are unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures. See id. The factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Id. See, also, Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
3. [In-Court Identification:] An in-court identification may properly be received in evidence when it is independent of and untainted by illegal pretrial identification procedures. Smith, supra. A primary factor in determining whether an independent basis for an in-court identification exists is the opportunity afforded the witness to observe the defendant in circumstances free from taint. Id. (Discrepancies:) Discrepancies and errors in identification where there is an adequate foundation are matters for a jury determination. State v. Evans, 187 Neb. 474, 192 N.W.2d 145 (1971). A witness’ credibility and weight to be given to testimony are matters for determination and evaluation by a fact finder. State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).
Consolidation of Charges:
1. [Appeal and error] A trial court’s ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004). ••• Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).pursuant to Neb. Rev. Stat. § 29-2002(2) (Reissue 1995), “The court may order two or more indictments, informations, or complaints . . . to be tried together if the offenses could have been joined in a single indictment, information, or complaint . . . ” ••• When determining whether the offenses were properly joined, appellate courts in this state undertake a two-stage analysis. See State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997). First, the appellate court must determine whether the offenses are properly joinable under § 29-2002(1). See State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993).If two or more offenses are properly joinable, courts must next determine whether joinder would be prejudicial to the defendant. See id. A defendant opposing joinder of charges has the burden of proving that joinder will be prejudicial to the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). A defendant is not prejudiced by the joinder of charges where the evidence relating to both offenses would be admissible in a trial of either offense separately. Freeman, supra. The evidence will be admitted if it is similar to and reasonably related to the offending conduct and is presented in a manner in which the prejudice does not outweigh its probative value. Id.
2. [Statutes:] Two or more offenses may be joined in the same indictment, information, or complaint if the offenses charged are “of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” § 29-2002(1). However, “[i]f it appears that a defendant . . . would be prejudiced by a joinder of offenses . . . the court may order an election for separate trials . . . .” § 29-2002(3).
Evidence:
1. [Rule 404: Other Crimes, Wrongs, or Acts:] Pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. Evidence of other crimes may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused’s guilt of the offense in question. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). It is within the discretion of the trial court to determine the admissibility of evidence of other wrongs or acts, and the trial court’s decision will not be reversed absent an abuse of that discretion. Freeman, supra.
Motion to Suppress:
1. [Appeal and Error:] A trial court’s ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000). A trial court’s ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo. Id.
2. [Timeliness of Objection:] We recognize that if a party fails to make a timely objection to evidence, the party waives the right to assert on appeal prejudicial error concerning the evidence received without objection. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991). Objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. Id.
3. [Constitutional Law:] The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches and seizures by the government. The Nebraska Constitution has a similar provision. See Neb. Const. art. 1, § 7.
4. [Warrant:] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006). In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement. Id.
5. [Automobile Exception:] “Less rigorous requirements govern searches of automobiles, not only because of the element of mobility, but because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. . . . One has a lesser expectation of privacy in a motor vehicle because its function is for transportation purposes and it seldom serves as one’s residence or as the repository of personal effects. . . . As such, the recognized exceptions to the Fourth Amendment’s warrant requirement as applied to automobiles include probable cause, exigent circumstances, consent, search incident to arrest, inventory search, and plain view.” State v. Scovill, 9 Neb. App. 118, 125, 608 N.W.2d 623, 630 (2000) (citations omitted), quoting State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). ••• When addressing the automobile exception, the U.S. Supreme Court has held: Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s “ready mobility,” an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. . . . More recent cases provide a further justification: the individual’s reduced expectation of privacy in an automobile, owing to its pervasive regulation. . . . If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996) (citations omitted). Since Labron, this state’s appellate courts have not directly addressed whether the automobile exception allows police to search an unoccupied vehicle parked in a residential area; however, in several cases, the U.S. Court of Appeals for the Eighth Circuit has concluded that such searches are permissible under the automobile exception. See, U.S. v. Fladten, 230 F.3d 1083 (8th Cir. 2000) (unoccupied vehicle in driveway); Capraro v. Bunt, 44 F.3d 690 (8th Cir. 1995) (truck parked in defendant’s driveway).
6. [Probable Cause:] Probable cause means a fair probability that contraband or evidence of a crime will be found. Konfrst, supra. While probable cause escapes precise definition, we determine probable cause by an objective standard of reasonableness: whether the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime will be found. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
Ineffective Assistance of Counsel:
1. [Appeal and Error:] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Concerning questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision. State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005).Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
2. [Prejudice:] To state a claim of ineffective assistance of counsel under Strickland, supra, and demonstrate that a conviction must be overturned, a defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). These two prongs may be addressed in either order, but if it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, that course should be followed. See id. To prove prejudice for a claim of ineffective assistance of counsel, the defendant must show there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
Statements:
1. [Voluntariness:] On questioned voluntariness, an accused’s statement, whether an admission or a confession, made to private citizens, as well as to law enforcement personnel, must be voluntary as determined by a court for admissibility and as a fact ascertained by the jury. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). ••• To meet the requirement that a defendant’s statement, admission, or confession was made freely and voluntarily, the evidence must show that such statement, admission, or confession was not the product of any promise or inducement--direct, indirect, or implied--no matter how slight. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992). Whether a confession, statement, or admission was made knowingly, intelligently, and voluntarily depends on the totality of the circumstances. State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993). A preliminary determination by the trial court that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). (Intoxication:) The mere fact of intoxication is not conclusive on the issue of voluntariness of a statement or a consent given by a defendant. Melton, supra. A defendant must be so intoxicated that he is unable to understand the meaning of his statements. Id. (Mental Illness:) Mental illness, like age, education, and intelligence, is a relevant factor in the totality test. State v. Dickson, 223 Neb. 397, 389 N.W.2d 785 (1986). However, no per se rule invalidates the volunteered statement of a mentally ill defendant. Id. Such statements are subject to the general rule that a statement freely and voluntarily given without any compelling influences is admissible. Id.
Closing Argument:
1. It is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his or her personal belief in the guilt of the defendant, unless such belief is given as a deduction from evidence. See State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled in part on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). The remarks of a prosecutor in his or her closing argument which do not mislead and unduly influence the jury and thereby prejudice the rights of the defendant do not constitute misconduct. See State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984).
Date Filed and Case No.: March 27, 2007. Nos. A-05-1415, A-06-523.
Court Appealed From: District Court for Lancaster County: Steven D. Burns, Judge.
Attorneys for the Appeal: Franklin E. Miner for Leon Sanders, Jr., Appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Carlson, Moore, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On 02/27/05 items were stolen from four Lincoln, Nebraska, businesses. The State charged Leon Sanders, Jr. with burglary and theft in two separate informations, alleging that he was responsible for the February 27 crimes. A jury trial was held and the jury returned a verdict of guilty on all counts. A judgment was subsequently entered, and Sanders was sentenced to 1 to 3 years’ imprisonment for theft by shoplifting and 2 to 3 years’ imprisonment for each count of burglary. On 11/03/05, Sanders, filed a notice of appeal in each case, however, because Sanders failed to include the required documents with the notice of appeal in that case (No. CR05-308), an appeal was not docketed. Sanders, with the assistance of new counsel, filed a motion for postconviction relief, claiming that he was denied effective assistance of counsel because his trial counsel failed to perfect his appeal and caused him to lose the opportunity for appellate review. On 04/19/06 after an evidentiary hearing was held, the district court granted Sanders’ request for a new direct appeal which was granted. Sanders appealed to the Nebraska Court of Appeals.
Was there error by the district court in denying Sanders’ motion to suppress a witness’ in-court identification? After the hearing on Sanders’ motion to suppress evidence of identification the district court overruled Sanders’ motion to suppress concluding that “the identification procedure was not ‘unnecessarily suggestive and conducive to an irreparably mistaken identification.’” The court noted that although the witness had a short time to observe Sanders’ face up close in the store, he had additional time to view Sanders in the well-lit parking lot. The court concluded, “There was sufficient observation of [Sanders] by (the witness) that the identification should be submitted to the jury for its consideration.” At trial, the witness identified Sanders as the individual he saw in the Hy-Vee store on the night of the theft. Because the district court’s findings were not clearly erroneous, the Court found that Sanders’ first assignment was without merit.
Did the district court err in granting the State’s motion for joinder and denying Sanders’ motion for severance? The Court noted that here all of the charges brought against Sanders are similar in nature and Sanders was not prejudiced by joinder of the two cases for trial. Because the trial court did not abuse its discretion by joining the cases for trial and Sanders was not prejudiced by joinder of the cases, this assignment is without merit.
Did the district court err in denying Sanders’ motion to suppress evidence discovered during a warrantless search of his vehicle? Sanders argued that the circumstances surrounding the search do not provide grounds for the application of an exception to the warrant requirement. The Court concluded that the automobile exception applies in the instant case as Sanders’ vehicle was readily mobile (even though Sanders was not in it.) The officers’ search was permissible under the Fourth Amendment even though they did not have a search warrant, as long as the officers had probable cause to believe that the search would uncover evidence of a crime. The Court first concluded that Sanders did not waive his right to object to the admission of evidence discovered during the warrantless search of his vehicle. “We do not agree with the State that because Sanders did not object on Fourth Amendment grounds to a police officer’s (Cronin’s) testimony that he (the officer) entered Sanders’ vehicle and pressed his foot on the brake pedal, Sanders waived the right to object to the admission of evidence discovered during the officers’ search of Sanders’ vehicle. Cronin did not offer testimony regarding any evidence discovered as a result of his entry into Sanders’ vehicle and the subsequent search for evidence. Therefore, there was nothing to object to at this point” ruled the Court. Sanders orally requested that the court suppress any evidence discovered by the officers during their search of Sanders’ vehicle. Sanders then objected to Graham’s testimony during trial regarding what she observed after Cronin pressed the vehicle’s brake pedal. Sanders had not previously waived his right to object to this testimony. The Court found the officers had probable cause to enter the vehicle in question to investigate whether all of its taillights were working. The facts and circumstances testified to were sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime would be found in Sanders’ vehicle. The Court also recalled that the driver’s-side door to Sanders’ vehicle was unlocked and was in fact open approximately 1 inch. This fact reinforced their conclusion that the officers did not need a search warrant to enter the vehicle. “Sanders’ failure to secure his vehicle further diminished any expectation of privacy he may have had relating to his vehicle.” Because the officers had probable cause to believe that evidence of a crime would be found in Sanders’ vehicle, this assignment of error is without merit.
Did Sanders trial counsel fail to properly address 1) whether incriminating statements made by Sanders to private citizens were voluntary and, 2) during closing arguments, failed to object to the prosecutor’s statements of opinion regarding Sanders’ guilt. For purposes of this appeal, the Court assumed without deciding that Sanders’ counsel’s performance was deficient and therefore dispose of this assignment by determining whether Sanders was prejudiced by his counsel’s performance.
2. In the instant case, even if Sanders’ counsel had more aggressively challenged the voluntary nature of Sanders’ statements and objected to their admission at trial, there is no reasonable probability that the district court would have determined that these statements were involuntarily made and would have therefore excluded them. During the hearing, each witness testified that she did not coerce or threaten Sanders in order to compel him to make incriminating statements, or make any promises in exchange for the statements. The circumstances surrounding the admissions do not indicate that they were anything but voluntarily made. After considering the totality of the circumstances, the Court concluded that Sanders was not prejudiced by his trial counsel’s performance.
3. In the instant case, the Court determined that the prosecutor’s statements were conclusions that were predicated upon the evidence. While the prosecutor couched her statements in terms of her beliefs, she was merely making deductions from the evidence. The Court further found that there was no evidence in the record that her statements misled or unduly influenced the jury. There was ample evidence of Sanders’ guilt presented during trial, and the trial court instructed the jury that statements made by attorneys were not to be considered as evidence.
Because Sanders was not prejudiced by any alleged misconduct by his counsel, this assignment was found to be without merit.
Conclusion: The Court concluded that Sanders’ assignments of error lacked merit. AFFIRMED.
The Nebraska Court of Appeals here affirms a conviction after a trial over claims of error that the district court erred in (1) denying defendant’s motion to suppress an in-court identification of him; (2) granting the State’s motion for joinder and denying his motion to sever the cases for trial; (3) denying his motion to suppress evidence obtained as the result of a warrantless search of his vehicle; and (4) denying him effective assistance of counsel in pretrial proceedings and at trial, because (a) defendant’s trial counsel ignored the importance of whether his admissions to private citizens were voluntarily made and then, at trial, failed to object to the use of the admissions and (b) during closing arguments, trial counsel failed to object to statements of the prosecutor’s opinion regarding defendant’s guilt.
State v. Sanders (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Identification by Witness:
1. [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. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). 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. Id.
2. [Constitutional Law:] An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). (Unduly Suggestive:) Whether identification procedures are unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures. See id. The factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Id. See, also, Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
3. [In-Court Identification:] An in-court identification may properly be received in evidence when it is independent of and untainted by illegal pretrial identification procedures. Smith, supra. A primary factor in determining whether an independent basis for an in-court identification exists is the opportunity afforded the witness to observe the defendant in circumstances free from taint. Id. (Discrepancies:) Discrepancies and errors in identification where there is an adequate foundation are matters for a jury determination. State v. Evans, 187 Neb. 474, 192 N.W.2d 145 (1971). A witness’ credibility and weight to be given to testimony are matters for determination and evaluation by a fact finder. State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).
Consolidation of Charges:
1. [Appeal and error] A trial court’s ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004). ••• Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).pursuant to Neb. Rev. Stat. § 29-2002(2) (Reissue 1995), “The court may order two or more indictments, informations, or complaints . . . to be tried together if the offenses could have been joined in a single indictment, information, or complaint . . . ” ••• When determining whether the offenses were properly joined, appellate courts in this state undertake a two-stage analysis. See State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997). First, the appellate court must determine whether the offenses are properly joinable under § 29-2002(1). See State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993).If two or more offenses are properly joinable, courts must next determine whether joinder would be prejudicial to the defendant. See id. A defendant opposing joinder of charges has the burden of proving that joinder will be prejudicial to the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). A defendant is not prejudiced by the joinder of charges where the evidence relating to both offenses would be admissible in a trial of either offense separately. Freeman, supra. The evidence will be admitted if it is similar to and reasonably related to the offending conduct and is presented in a manner in which the prejudice does not outweigh its probative value. Id.
2. [Statutes:] Two or more offenses may be joined in the same indictment, information, or complaint if the offenses charged are “of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” § 29-2002(1). However, “[i]f it appears that a defendant . . . would be prejudiced by a joinder of offenses . . . the court may order an election for separate trials . . . .” § 29-2002(3).
Evidence:
1. [Rule 404: Other Crimes, Wrongs, or Acts:] Pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. Evidence of other crimes may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused’s guilt of the offense in question. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). It is within the discretion of the trial court to determine the admissibility of evidence of other wrongs or acts, and the trial court’s decision will not be reversed absent an abuse of that discretion. Freeman, supra.
Motion to Suppress:
1. [Appeal and Error:] A trial court’s ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000). A trial court’s ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo. Id.
2. [Timeliness of Objection:] We recognize that if a party fails to make a timely objection to evidence, the party waives the right to assert on appeal prejudicial error concerning the evidence received without objection. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991). Objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. Id.
3. [Constitutional Law:] The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches and seizures by the government. The Nebraska Constitution has a similar provision. See Neb. Const. art. 1, § 7.
4. [Warrant:] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006). In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement. Id.
5. [Automobile Exception:] “Less rigorous requirements govern searches of automobiles, not only because of the element of mobility, but because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. . . . One has a lesser expectation of privacy in a motor vehicle because its function is for transportation purposes and it seldom serves as one’s residence or as the repository of personal effects. . . . As such, the recognized exceptions to the Fourth Amendment’s warrant requirement as applied to automobiles include probable cause, exigent circumstances, consent, search incident to arrest, inventory search, and plain view.” State v. Scovill, 9 Neb. App. 118, 125, 608 N.W.2d 623, 630 (2000) (citations omitted), quoting State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). ••• When addressing the automobile exception, the U.S. Supreme Court has held: Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s “ready mobility,” an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. . . . More recent cases provide a further justification: the individual’s reduced expectation of privacy in an automobile, owing to its pervasive regulation. . . . If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996) (citations omitted). Since Labron, this state’s appellate courts have not directly addressed whether the automobile exception allows police to search an unoccupied vehicle parked in a residential area; however, in several cases, the U.S. Court of Appeals for the Eighth Circuit has concluded that such searches are permissible under the automobile exception. See, U.S. v. Fladten, 230 F.3d 1083 (8th Cir. 2000) (unoccupied vehicle in driveway); Capraro v. Bunt, 44 F.3d 690 (8th Cir. 1995) (truck parked in defendant’s driveway).
6. [Probable Cause:] Probable cause means a fair probability that contraband or evidence of a crime will be found. Konfrst, supra. While probable cause escapes precise definition, we determine probable cause by an objective standard of reasonableness: whether the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime will be found. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
Ineffective Assistance of Counsel:
1. [Appeal and Error:] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Concerning questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision. State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005).Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
2. [Prejudice:] To state a claim of ineffective assistance of counsel under Strickland, supra, and demonstrate that a conviction must be overturned, a defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). These two prongs may be addressed in either order, but if it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, that course should be followed. See id. To prove prejudice for a claim of ineffective assistance of counsel, the defendant must show there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
Statements:
1. [Voluntariness:] On questioned voluntariness, an accused’s statement, whether an admission or a confession, made to private citizens, as well as to law enforcement personnel, must be voluntary as determined by a court for admissibility and as a fact ascertained by the jury. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). ••• To meet the requirement that a defendant’s statement, admission, or confession was made freely and voluntarily, the evidence must show that such statement, admission, or confession was not the product of any promise or inducement--direct, indirect, or implied--no matter how slight. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992). Whether a confession, statement, or admission was made knowingly, intelligently, and voluntarily depends on the totality of the circumstances. State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993). A preliminary determination by the trial court that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). (Intoxication:) The mere fact of intoxication is not conclusive on the issue of voluntariness of a statement or a consent given by a defendant. Melton, supra. A defendant must be so intoxicated that he is unable to understand the meaning of his statements. Id. (Mental Illness:) Mental illness, like age, education, and intelligence, is a relevant factor in the totality test. State v. Dickson, 223 Neb. 397, 389 N.W.2d 785 (1986). However, no per se rule invalidates the volunteered statement of a mentally ill defendant. Id. Such statements are subject to the general rule that a statement freely and voluntarily given without any compelling influences is admissible. Id.
Closing Argument:
1. It is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his or her personal belief in the guilt of the defendant, unless such belief is given as a deduction from evidence. See State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled in part on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). The remarks of a prosecutor in his or her closing argument which do not mislead and unduly influence the jury and thereby prejudice the rights of the defendant do not constitute misconduct. See State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984).
Date Filed and Case No.: March 27, 2007. Nos. A-05-1415, A-06-523.
Court Appealed From: District Court for Lancaster County: Steven D. Burns, Judge.
Attorneys for the Appeal: Franklin E. Miner for Leon Sanders, Jr., Appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Carlson, Moore, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On 02/27/05 items were stolen from four Lincoln, Nebraska, businesses. The State charged Leon Sanders, Jr. with burglary and theft in two separate informations, alleging that he was responsible for the February 27 crimes. A jury trial was held and the jury returned a verdict of guilty on all counts. A judgment was subsequently entered, and Sanders was sentenced to 1 to 3 years’ imprisonment for theft by shoplifting and 2 to 3 years’ imprisonment for each count of burglary. On 11/03/05, Sanders, filed a notice of appeal in each case, however, because Sanders failed to include the required documents with the notice of appeal in that case (No. CR05-308), an appeal was not docketed. Sanders, with the assistance of new counsel, filed a motion for postconviction relief, claiming that he was denied effective assistance of counsel because his trial counsel failed to perfect his appeal and caused him to lose the opportunity for appellate review. On 04/19/06 after an evidentiary hearing was held, the district court granted Sanders’ request for a new direct appeal which was granted. Sanders appealed to the Nebraska Court of Appeals.
Was there error by the district court in denying Sanders’ motion to suppress a witness’ in-court identification? After the hearing on Sanders’ motion to suppress evidence of identification the district court overruled Sanders’ motion to suppress concluding that “the identification procedure was not ‘unnecessarily suggestive and conducive to an irreparably mistaken identification.’” The court noted that although the witness had a short time to observe Sanders’ face up close in the store, he had additional time to view Sanders in the well-lit parking lot. The court concluded, “There was sufficient observation of [Sanders] by (the witness) that the identification should be submitted to the jury for its consideration.” At trial, the witness identified Sanders as the individual he saw in the Hy-Vee store on the night of the theft. Because the district court’s findings were not clearly erroneous, the Court found that Sanders’ first assignment was without merit.
Did the district court err in granting the State’s motion for joinder and denying Sanders’ motion for severance? The Court noted that here all of the charges brought against Sanders are similar in nature and Sanders was not prejudiced by joinder of the two cases for trial. Because the trial court did not abuse its discretion by joining the cases for trial and Sanders was not prejudiced by joinder of the cases, this assignment is without merit.
Did the district court err in denying Sanders’ motion to suppress evidence discovered during a warrantless search of his vehicle? Sanders argued that the circumstances surrounding the search do not provide grounds for the application of an exception to the warrant requirement. The Court concluded that the automobile exception applies in the instant case as Sanders’ vehicle was readily mobile (even though Sanders was not in it.) The officers’ search was permissible under the Fourth Amendment even though they did not have a search warrant, as long as the officers had probable cause to believe that the search would uncover evidence of a crime. The Court first concluded that Sanders did not waive his right to object to the admission of evidence discovered during the warrantless search of his vehicle. “We do not agree with the State that because Sanders did not object on Fourth Amendment grounds to a police officer’s (Cronin’s) testimony that he (the officer) entered Sanders’ vehicle and pressed his foot on the brake pedal, Sanders waived the right to object to the admission of evidence discovered during the officers’ search of Sanders’ vehicle. Cronin did not offer testimony regarding any evidence discovered as a result of his entry into Sanders’ vehicle and the subsequent search for evidence. Therefore, there was nothing to object to at this point” ruled the Court. Sanders orally requested that the court suppress any evidence discovered by the officers during their search of Sanders’ vehicle. Sanders then objected to Graham’s testimony during trial regarding what she observed after Cronin pressed the vehicle’s brake pedal. Sanders had not previously waived his right to object to this testimony. The Court found the officers had probable cause to enter the vehicle in question to investigate whether all of its taillights were working. The facts and circumstances testified to were sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime would be found in Sanders’ vehicle. The Court also recalled that the driver’s-side door to Sanders’ vehicle was unlocked and was in fact open approximately 1 inch. This fact reinforced their conclusion that the officers did not need a search warrant to enter the vehicle. “Sanders’ failure to secure his vehicle further diminished any expectation of privacy he may have had relating to his vehicle.” Because the officers had probable cause to believe that evidence of a crime would be found in Sanders’ vehicle, this assignment of error is without merit.
Did Sanders trial counsel fail to properly address 1) whether incriminating statements made by Sanders to private citizens were voluntary and, 2) during closing arguments, failed to object to the prosecutor’s statements of opinion regarding Sanders’ guilt. For purposes of this appeal, the Court assumed without deciding that Sanders’ counsel’s performance was deficient and therefore dispose of this assignment by determining whether Sanders was prejudiced by his counsel’s performance.
2. In the instant case, even if Sanders’ counsel had more aggressively challenged the voluntary nature of Sanders’ statements and objected to their admission at trial, there is no reasonable probability that the district court would have determined that these statements were involuntarily made and would have therefore excluded them. During the hearing, each witness testified that she did not coerce or threaten Sanders in order to compel him to make incriminating statements, or make any promises in exchange for the statements. The circumstances surrounding the admissions do not indicate that they were anything but voluntarily made. After considering the totality of the circumstances, the Court concluded that Sanders was not prejudiced by his trial counsel’s performance.
3. In the instant case, the Court determined that the prosecutor’s statements were conclusions that were predicated upon the evidence. While the prosecutor couched her statements in terms of her beliefs, she was merely making deductions from the evidence. The Court further found that there was no evidence in the record that her statements misled or unduly influenced the jury. There was ample evidence of Sanders’ guilt presented during trial, and the trial court instructed the jury that statements made by attorneys were not to be considered as evidence.
Because Sanders was not prejudiced by any alleged misconduct by his counsel, this assignment was found to be without merit.
Conclusion: The Court concluded that Sanders’ assignments of error lacked merit. AFFIRMED.
The Nebraska Court of Appeals here affirms a conviction after a trial over claims of error that the district court erred in (1) denying defendant’s motion to suppress an in-court identification of him; (2) granting the State’s motion for joinder and denying his motion to sever the cases for trial; (3) denying his motion to suppress evidence obtained as the result of a warrantless search of his vehicle; and (4) denying him effective assistance of counsel in pretrial proceedings and at trial, because (a) defendant’s trial counsel ignored the importance of whether his admissions to private citizens were voluntarily made and then, at trial, failed to object to the use of the admissions and (b) during closing arguments, trial counsel failed to object to statements of the prosecutor’s opinion regarding defendant’s guilt.
State v. Sanders (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Identification by Witness:
1. [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. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). 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. Id.
2. [Constitutional Law:] An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). (Unduly Suggestive:) Whether identification procedures are unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures. See id. The factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Id. See, also, Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
3. [In-Court Identification:] An in-court identification may properly be received in evidence when it is independent of and untainted by illegal pretrial identification procedures. Smith, supra. A primary factor in determining whether an independent basis for an in-court identification exists is the opportunity afforded the witness to observe the defendant in circumstances free from taint. Id. (Discrepancies:) Discrepancies and errors in identification where there is an adequate foundation are matters for a jury determination. State v. Evans, 187 Neb. 474, 192 N.W.2d 145 (1971). A witness’ credibility and weight to be given to testimony are matters for determination and evaluation by a fact finder. State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).
Consolidation of Charges:
1. [Appeal and error] A trial court’s ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004). ••• Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).pursuant to Neb. Rev. Stat. § 29-2002(2) (Reissue 1995), “The court may order two or more indictments, informations, or complaints . . . to be tried together if the offenses could have been joined in a single indictment, information, or complaint . . . ” ••• When determining whether the offenses were properly joined, appellate courts in this state undertake a two-stage analysis. See State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997). First, the appellate court must determine whether the offenses are properly joinable under § 29-2002(1). See State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993).If two or more offenses are properly joinable, courts must next determine whether joinder would be prejudicial to the defendant. See id. A defendant opposing joinder of charges has the burden of proving that joinder will be prejudicial to the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). A defendant is not prejudiced by the joinder of charges where the evidence relating to both offenses would be admissible in a trial of either offense separately. Freeman, supra. The evidence will be admitted if it is similar to and reasonably related to the offending conduct and is presented in a manner in which the prejudice does not outweigh its probative value. Id.
2. [Statutes:] Two or more offenses may be joined in the same indictment, information, or complaint if the offenses charged are “of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” § 29-2002(1). However, “[i]f it appears that a defendant . . . would be prejudiced by a joinder of offenses . . . the court may order an election for separate trials . . . .” § 29-2002(3).
Evidence:
1. [Rule 404: Other Crimes, Wrongs, or Acts:] Pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. Evidence of other crimes may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused’s guilt of the offense in question. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). It is within the discretion of the trial court to determine the admissibility of evidence of other wrongs or acts, and the trial court’s decision will not be reversed absent an abuse of that discretion. Freeman, supra.
Motion to Suppress:
1. [Appeal and Error:] A trial court’s ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000). A trial court’s ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo. Id.
2. [Timeliness of Objection:] We recognize that if a party fails to make a timely objection to evidence, the party waives the right to assert on appeal prejudicial error concerning the evidence received without objection. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991). Objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. Id.
3. [Constitutional Law:] The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches and seizures by the government. The Nebraska Constitution has a similar provision. See Neb. Const. art. 1, § 7.
4. [Warrant:] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006). In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement. Id.
5. [Automobile Exception:] “Less rigorous requirements govern searches of automobiles, not only because of the element of mobility, but because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. . . . One has a lesser expectation of privacy in a motor vehicle because its function is for transportation purposes and it seldom serves as one’s residence or as the repository of personal effects. . . . As such, the recognized exceptions to the Fourth Amendment’s warrant requirement as applied to automobiles include probable cause, exigent circumstances, consent, search incident to arrest, inventory search, and plain view.” State v. Scovill, 9 Neb. App. 118, 125, 608 N.W.2d 623, 630 (2000) (citations omitted), quoting State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). ••• When addressing the automobile exception, the U.S. Supreme Court has held: Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s “ready mobility,” an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. . . . More recent cases provide a further justification: the individual’s reduced expectation of privacy in an automobile, owing to its pervasive regulation. . . . If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996) (citations omitted). Since Labron, this state’s appellate courts have not directly addressed whether the automobile exception allows police to search an unoccupied vehicle parked in a residential area; however, in several cases, the U.S. Court of Appeals for the Eighth Circuit has concluded that such searches are permissible under the automobile exception. See, U.S. v. Fladten, 230 F.3d 1083 (8th Cir. 2000) (unoccupied vehicle in driveway); Capraro v. Bunt, 44 F.3d 690 (8th Cir. 1995) (truck parked in defendant’s driveway).
6. [Probable Cause:] Probable cause means a fair probability that contraband or evidence of a crime will be found. Konfrst, supra. While probable cause escapes precise definition, we determine probable cause by an objective standard of reasonableness: whether the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime will be found. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
Ineffective Assistance of Counsel:
1. [Appeal and Error:] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Concerning questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision. State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005).Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
2. [Prejudice:] To state a claim of ineffective assistance of counsel under Strickland, supra, and demonstrate that a conviction must be overturned, a defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). These two prongs may be addressed in either order, but if it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, that course should be followed. See id. To prove prejudice for a claim of ineffective assistance of counsel, the defendant must show there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
Statements:
1. [Voluntariness:] On questioned voluntariness, an accused’s statement, whether an admission or a confession, made to private citizens, as well as to law enforcement personnel, must be voluntary as determined by a court for admissibility and as a fact ascertained by the jury. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). ••• To meet the requirement that a defendant’s statement, admission, or confession was made freely and voluntarily, the evidence must show that such statement, admission, or confession was not the product of any promise or inducement--direct, indirect, or implied--no matter how slight. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992). Whether a confession, statement, or admission was made knowingly, intelligently, and voluntarily depends on the totality of the circumstances. State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993). A preliminary determination by the trial court that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). (Intoxication:) The mere fact of intoxication is not conclusive on the issue of voluntariness of a statement or a consent given by a defendant. Melton, supra. A defendant must be so intoxicated that he is unable to understand the meaning of his statements. Id. (Mental Illness:) Mental illness, like age, education, and intelligence, is a relevant factor in the totality test. State v. Dickson, 223 Neb. 397, 389 N.W.2d 785 (1986). However, no per se rule invalidates the volunteered statement of a mentally ill defendant. Id. Such statements are subject to the general rule that a statement freely and voluntarily given without any compelling influences is admissible. Id.
Closing Argument:
1. It is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his or her personal belief in the guilt of the defendant, unless such belief is given as a deduction from evidence. See State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled in part on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). The remarks of a prosecutor in his or her closing argument which do not mislead and unduly influence the jury and thereby prejudice the rights of the defendant do not constitute misconduct. See State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984).
Date Filed and Case No.: March 27, 2007. Nos. A-05-1415, A-06-523.
Court Appealed From: District Court for Lancaster County: Steven D. Burns, Judge.
Attorneys for the Appeal: Franklin E. Miner for Leon Sanders, Jr., Appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Carlson, Moore, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On 02/27/05 items were stolen from four Lincoln, Nebraska, businesses. The State charged Leon Sanders, Jr. with burglary and theft in two separate informations, alleging that he was responsible for the February 27 crimes. A jury trial was held and the jury returned a verdict of guilty on all counts. A judgment was subsequently entered, and Sanders was sentenced to 1 to 3 years’ imprisonment for theft by shoplifting and 2 to 3 years’ imprisonment for each count of burglary. On 11/03/05, Sanders, filed a notice of appeal in each case, however, because Sanders failed to include the required documents with the notice of appeal in that case (No. CR05-308), an appeal was not docketed. Sanders, with the assistance of new counsel, filed a motion for postconviction relief, claiming that he was denied effective assistance of counsel because his trial counsel failed to perfect his appeal and caused him to lose the opportunity for appellate review. On 04/19/06 after an evidentiary hearing was held, the district court granted Sanders’ request for a new direct appeal which was granted. Sanders appealed to the Nebraska Court of Appeals.
Was there error by the district court in denying Sanders’ motion to suppress a witness’ in-court identification? After the hearing on Sanders’ motion to suppress evidence of identification the district court overruled Sanders’ motion to suppress concluding that “the identification procedure was not ‘unnecessarily suggestive and conducive to an irreparably mistaken identification.’” The court noted that although the witness had a short time to observe Sanders’ face up close in the store, he had additional time to view Sanders in the well-lit parking lot. The court concluded, “There was sufficient observation of [Sanders] by (the witness) that the identification should be submitted to the jury for its consideration.” At trial, the witness identified Sanders as the individual he saw in the Hy-Vee store on the night of the theft. Because the district court’s findings were not clearly erroneous, the Court found that Sanders’ first assignment was without merit.
Did the district court err in granting the State’s motion for joinder and denying Sanders’ motion for severance? The Court noted that here all of the charges brought against Sanders are similar in nature and Sanders was not prejudiced by joinder of the two cases for trial. Because the trial court did not abuse its discretion by joining the cases for trial and Sanders was not prejudiced by joinder of the cases, this assignment is without merit.
Did the district court err in denying Sanders’ motion to suppress evidence discovered during a warrantless search of his vehicle? Sanders argued that the circumstances surrounding the search do not provide grounds for the application of an exception to the warrant requirement. The Court concluded that the automobile exception applies in the instant case as Sanders’ vehicle was readily mobile (even though Sanders was not in it.) The officers’ search was permissible under the Fourth Amendment even though they did not have a search warrant, as long as the officers had probable cause to believe that the search would uncover evidence of a crime. The Court first concluded that Sanders did not waive his right to object to the admission of evidence discovered during the warrantless search of his vehicle. “We do not agree with the State that because Sanders did not object on Fourth Amendment grounds to a police officer’s (Cronin’s) testimony that he (the officer) entered Sanders’ vehicle and pressed his foot on the brake pedal, Sanders waived the right to object to the admission of evidence discovered during the officers’ search of Sanders’ vehicle. Cronin did not offer testimony regarding any evidence discovered as a result of his entry into Sanders’ vehicle and the subsequent search for evidence. Therefore, there was nothing to object to at this point” ruled the Court. Sanders orally requested that the court suppress any evidence discovered by the officers during their search of Sanders’ vehicle. Sanders then objected to Graham’s testimony during trial regarding what she observed after Cronin pressed the vehicle’s brake pedal. Sanders had not previously waived his right to object to this testimony. The Court found the officers had probable cause to enter the vehicle in question to investigate whether all of its taillights were working. The facts and circumstances testified to were sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime would be found in Sanders’ vehicle. The Court also recalled that the driver’s-side door to Sanders’ vehicle was unlocked and was in fact open approximately 1 inch. This fact reinforced their conclusion that the officers did not need a search warrant to enter the vehicle. “Sanders’ failure to secure his vehicle further diminished any expectation of privacy he may have had relating to his vehicle.” Because the officers had probable cause to believe that evidence of a crime would be found in Sanders’ vehicle, this assignment of error is without merit.
Did Sanders trial counsel fail to properly address 1) whether incriminating statements made by Sanders to private citizens were voluntary and, 2) during closing arguments, failed to object to the prosecutor’s statements of opinion regarding Sanders’ guilt. For purposes of this appeal, the Court assumed without deciding that Sanders’ counsel’s performance was deficient and therefore dispose of this assignment by determining whether Sanders was prejudiced by his counsel’s performance.
2. In the instant case, even if Sanders’ counsel had more aggressively challenged the voluntary nature of Sanders’ statements and objected to their admission at trial, there is no reasonable probability that the district court would have determined that these statements were involuntarily made and would have therefore excluded them. During the hearing, each witness testified that she did not coerce or threaten Sanders in order to compel him to make incriminating statements, or make any promises in exchange for the statements. The circumstances surrounding the admissions do not indicate that they were anything but voluntarily made. After considering the totality of the circumstances, the Court concluded that Sanders was not prejudiced by his trial counsel’s performance.
3. In the instant case, the Court determined that the prosecutor’s statements were conclusions that were predicated upon the evidence. While the prosecutor couched her statements in terms of her beliefs, she was merely making deductions from the evidence. The Court further found that there was no evidence in the record that her statements misled or unduly influenced the jury. There was ample evidence of Sanders’ guilt presented during trial, and the trial court instructed the jury that statements made by attorneys were not to be considered as evidence.
Because Sanders was not prejudiced by any alleged misconduct by his counsel, this assignment was found to be without merit.
Conclusion: The Court concluded that Sanders’ assignments of error lacked merit. AFFIRMED.
The Nebraska Court of Appeals here affirms a conviction after a trial over claims of error that the district court erred in (1) denying defendant’s motion to suppress an in-court identification of him; (2) granting the State’s motion for joinder and denying his motion to sever the cases for trial; (3) denying his motion to suppress evidence obtained as the result of a warrantless search of his vehicle; and (4) denying him effective assistance of counsel in pretrial proceedings and at trial, because (a) defendant’s trial counsel ignored the importance of whether his admissions to private citizens were voluntarily made and then, at trial, failed to object to the use of the admissions and (b) during closing arguments, trial counsel failed to object to statements of the prosecutor’s opinion regarding defendant’s guilt.
State v. Sanders (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Identification by Witness:
1. [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. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). 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. Id.
2. [Constitutional Law:] An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). (Unduly Suggestive:) Whether identification procedures are unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures. See id. The factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Id. See, also, Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
3. [In-Court Identification:] An in-court identification may properly be received in evidence when it is independent of and untainted by illegal pretrial identification procedures. Smith, supra. A primary factor in determining whether an independent basis for an in-court identification exists is the opportunity afforded the witness to observe the defendant in circumstances free from taint. Id. (Discrepancies:) Discrepancies and errors in identification where there is an adequate foundation are matters for a jury determination. State v. Evans, 187 Neb. 474, 192 N.W.2d 145 (1971). A witness’ credibility and weight to be given to testimony are matters for determination and evaluation by a fact finder. State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996).
Consolidation of Charges:
1. [Appeal and error] A trial court’s ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion. State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004). ••• Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).pursuant to Neb. Rev. Stat. § 29-2002(2) (Reissue 1995), “The court may order two or more indictments, informations, or complaints . . . to be tried together if the offenses could have been joined in a single indictment, information, or complaint . . . ” ••• When determining whether the offenses were properly joined, appellate courts in this state undertake a two-stage analysis. See State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997). First, the appellate court must determine whether the offenses are properly joinable under § 29-2002(1). See State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993).If two or more offenses are properly joinable, courts must next determine whether joinder would be prejudicial to the defendant. See id. A defendant opposing joinder of charges has the burden of proving that joinder will be prejudicial to the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). A defendant is not prejudiced by the joinder of charges where the evidence relating to both offenses would be admissible in a trial of either offense separately. Freeman, supra. The evidence will be admitted if it is similar to and reasonably related to the offending conduct and is presented in a manner in which the prejudice does not outweigh its probative value. Id.
2. [Statutes:] Two or more offenses may be joined in the same indictment, information, or complaint if the offenses charged are “of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” § 29-2002(1). However, “[i]f it appears that a defendant . . . would be prejudiced by a joinder of offenses . . . the court may order an election for separate trials . . . .” § 29-2002(3).
Evidence:
1. [Rule 404: Other Crimes, Wrongs, or Acts:] Pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. Evidence of other crimes may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused’s guilt of the offense in question. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). It is within the discretion of the trial court to determine the admissibility of evidence of other wrongs or acts, and the trial court’s decision will not be reversed absent an abuse of that discretion. Freeman, supra.
