State v. Garcia , 302 Neb. 406 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/15/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. GARCIA
Cite as 302 Neb. 406
State of Nebraska, appellee, v.
Carlos A. Garcia, appellant.
___ N.W.2d ___
Filed March 8, 2019. No. S-17-1202.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Mental Competency: Appeal and Error. The trial court’s determina-
tion of competency will not be disturbed unless there is insufficient
evidence to support the finding.
3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
4. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
5. Effectiveness of Counsel: Appeal and Error. An appellate court deter-
mines as a matter of law whether the record conclusively shows that
(1) a defense counsel’s performance was deficient or (2) a defend­ant
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STATE v. GARCIA
Cite as 302 Neb. 406
was or was not prejudiced by a defense counsel’s alleged defi-
cient performance.
6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
7. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
8. ____: ____. Under the Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution, the ultimate touchstone is
one of reasonableness.
9. Constitutional Law: Search and Seizure: Warrantless Searches.
Pursuant to the Fourth Amendment to the U.S. Constitution and article
I, § 7, of the Nebraska Constitution, searches and seizures must not be
unreasonable, and searches without a valid warrant are per se unreason-
able, subject only to a few specifically established and well-delineated
exceptions.
10. Constitutional Law: Investigative Stops: Search and Seizure:
Probable Cause. The Fourth Amendment guarantee of the right to be
free of unreasonable searches and seizures requires that an arrest be
based upon probable cause and limits investigatory stops to those made
upon an articulable suspicion of criminal activity.
11. Police Officers and Sheriffs: Investigative Stops: Probable Cause. In
determining whether there is reasonable suspicion for an officer to make
an investigatory stop, the totality of the circumstances must be taken
into account.
12. Warrantless Searches: Probable Cause: Police Officers and Sheriffs.
Probable cause to support a warrantless arrest exists only if law enforce-
ment has knowledge at the time of the arrest, based on information that
is reasonably trustworthy under the circumstances, which would cause a
reasonably cautious person to believe that a suspect has committed or is
committing a crime.
13. Warrantless Searches. The warrantless search exceptions recognized by
the Nebraska Supreme Court include: (1) searches undertaken with con-
sent, (2) searches under exigent circumstances, (3) inventory searches,
(4) searches of evidence in plain view, and (5) searches incident to a
valid arrest.
14. Police Officers and Sheriffs: Search and Seizure: Arrests. After an
arrest is made, the arresting officer may search an arrestee’s person to
remove any weapons that he or she might use to resist arrest or to effect
his or her escape, or to seize any evidence on the arrestee’s person in
order to prevent the concealment or destruction of such evidence.
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STATE v. GARCIA
Cite as 302 Neb. 406
15. Arrests: Search and Seizure. The justification for a search incident
to a lawful arrest is absent if a search is remote in time or place from
the arrest.
16. ____: ____. Inventory searches after an arrest are permissible.
17. Search and Seizure. The propriety of an inventory search is judged
by a standard of reasonableness, and such search must be performed in
accordance with standard operating procedures.
18. ____. Inventory searches must be conducted pursuant to an established
routine, because an inventory search must not be a ruse for a general
rummaging in order to discover incriminating evidence.
19. Search and Seizure: Police Officers and Sheriffs. Inventory searches
are considered reasonable because they serve at least three needs unre-
lated to criminal investigation: (1) to protect the owner’s property while
it remains in police custody, (2) to protect police against claims that
they lost or stole the property, and (3) to protect police from poten-
tial danger.
20. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on a
renewed objection, an appellate court considers all evidence, both from
the trial and from the hearing on the motion to suppress.
21. Trial: Testimony: Police Officers and Sheriffs: Search and Seizure.
Testimony of police officers may be used to establish the existence of
a standard procedure and that an inventory search was conducted in
accord­ance with that procedure.
22. Search and Seizure: Evidence. Evidence which would have been dis-
covered in the course of a lawful inventory search can be admissible
under the inevitable discovery doctrine.
23. Mental Competency: Trial: Sentences: Time. A trial court can deter-
mine a defendant’s competency after trial but prior to sentencing, and it
is the obligation of the court to do so.
24. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
25. Courts: Trial: Mental Competency. The question of competency to
stand trial is one of fact to be determined by the court, and the means
employed in resolving the question are discretionary with the court.
26. Robbery: Words and Phrases. To find the element of taking “by put-
ting in fear” under the robbery statute, Neb. Rev. Stat. § 28-324 (Reissue
2016), the finder of fact must determine from the context established
by the evidence whether the defendant’s conduct would have placed a
reasonable person in fear.
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STATE v. GARCIA
Cite as 302 Neb. 406
27. Effectiveness of Counsel: Postconviction: Appeal and Error. When a
defendant’s trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of trial
counsel’s ineffective performance which is known to the defendant or
is apparent from the record, otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding.
28. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
29. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
30. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
31. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural back-
ground, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the commission of
the crime.
32. ____. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defend­
ant’s demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, Nathan A. Liss, and,
on brief, Joe Meyer for appellee.
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STATE v. GARCIA
Cite as 302 Neb. 406
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Carlos A. Garcia was convicted and sentenced for rob-
bery in the district court for Douglas County. Garcia appeals
and claims that the district court erred when it admitted into
evidence a note that was found in what he asserts was an
improper search of his person and when it determined that he
was competent to stand trial and for sentencing. He also claims
that there was not sufficient evidence to support his conviction,
that his trial counsel provided ineffective assistance, and that
the court imposed an excessive sentence. We affirm Garcia’s
conviction and sentence.
STATEMENT OF FACTS
In the mid-afternoon of October 27, 2015, Brandon Ruser
was working as a teller at a bank in Omaha, Nebraska, when
a man Ruser would identify at trial as Garcia approached him.
Garcia handed Ruser a note that read, “THIS IS A ROBBERY
PUT THE MONEY ON THE COUNTER.” Ruser testified at
trial that when he saw the note, he “[f]roze” out of “[f]ear,
panic.” Ruser reread the note to be sure he had read it correctly.
Thereafter, in accordance with the protocol he had learned in
training, Ruser collected the cash that was in his drawer, placed
it on the counter, and backed away. After Ruser put the cash on
the counter, Garcia picked up the note, put it in his pocket, and
left the bank with the cash. It was later determined that $3,579
had been taken from the bank.
After Garcia left the bank, Ruser reported to his coworkers
what had happened. Ruser looked outside and saw Garcia get
into the front passenger seat of a black Toyota RAV4 that was
parked in the bank’s parking lot. Ruser could not see the driver
well, but he testified the driver “appeared to be a woman. I
just saw longer hair.” The vehicle slowly backed up and drove
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STATE v. GARCIA
Cite as 302 Neb. 406
away in a manner that Ruser described as “pretty much as if
nothing had happened.”
Police officers investigating the robbery learned from wit-
nesses the license plate number for the black Toyota in which
Garcia was seen leaving the bank. Using the license plate
number, officers learned that the vehicle was registered to
Kelli Allison. They went to the address listed for Allison on
vehicle license records, and there, they spoke with Allison.
Garcia was the father of Allison’s two children, and she had
had an “on-again-off-again” relationship with him over the
years. In October 2015, they were not in an intimate relation-
ship and were not living together, but they were friends, and
she was helping him by paying the rent for a motel where he
was staying.
Allison told police that earlier in the day on October 27,
2015, she had helped Garcia by driving him to run some
errands. As the final errand, Garcia asked Allison to take him
to a local bank to cash a check. Allison waited in the parking
lot while Garcia went into the bank. He was inside for 5 to 10
minutes before he came back out and got into the car. Allison
then drove Garcia back to the motel where he was staying.
Police officers thereafter applied for a warrant to search
Garcia’s motel room. Preliminary to our discussion of the
application for the search warrant, we note that throughout
both the application and the search warrant itself, the suspect
is sometimes referred to as “Carlos Garcia,” but roughly in an
equal number of times, he is referred to as “Carlos Gomez.”
In the discussion below, for the sake of clarity, we refer to
“Garcia,” but for completeness, it should be noted that in at
least some of the instances discussed below, the application
or the search warrant actually refers to “Carlos Gomez” rather
than to “Carlos Garcia.” Alfred S. Orsi, the police officer who
prepared the application for the search warrant, explained that
this was a typographical error.
As grounds for issuance of the search warrant, Orsi noted,
inter alia, information obtained from Allison to the effect that
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STATE v. GARCIA
Cite as 302 Neb. 406
she had taken Garcia to the bank and thereafter to his motel
room. Orsi also noted that officers had gone to the motel and
confirmed with the manager that the room identified by Allison
was being rented in Allison’s name. The manager also stated
that in the recent past, he had observed a man fitting Garcia’s
description going into the room; after being shown a picture
of the robbery suspect taken from the bank surveillance video,
the manager identified the man in the photograph as the man
he had seen going into the room. Orsi further noted in the
application that officers had shown Ruser, the bank teller, a
photographic lineup that included a picture of Garcia and that
Ruser had identified Garcia as the robber.
In the application, Orsi listed various items that were the
intended targets of the search. These items included, inter
alia, cash, clothing that the robber was described as having
worn, and, notably for this appeal, a robbery note “stating
something to the effect of ‘This is a robbery, put the money
on the counter.’” Orsi asserted that the listed items were “con-
cealed or kept in, on, or about the following described place
or person.” Orsi thereafter gave the address and room number
for the motel room and stated that the search location was to
include, inter alia, vehicles at the location that were connected
to or under the control of the suspect. The application further
stated that “said property is under the control or custody of:
Carlos GARCIA,” and gave a physical description of Garcia.
Orsi further requested authorization for a night-time search
and a no-knock, no-announce search warrant. Orsi asserted
that although no weapon had been shown during the robbery,
Garcia had a history of violence which included a prior convic-
tion and incarceration for manslaughter.
Based on Orsi’s application, the Douglas County Court
issued a search warrant on October 27, 2015. The court set
forth the items listed in the application and found that there
was probable cause to believe that the items were concealed
in the motel room, in vehicles under the control of the suspect,
or, inter alia, on “the person of Carlos GARCIA.” The search
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STATE v. GARCIA
Cite as 302 Neb. 406
warrant gave Orsi, “with the necessary and proper assistance,”
authority “to search the afore described location and/or per-
son, for the purpose of seizing the before described property.”
The search warrant further gave authority to execute a night-
time search and to enter the premises without knocking or
announcing. The warrant required Orsi to make return of the
warrant within 10 days.
Orsi conducted a search of the motel room “an hour or
two after the warrant and affidavit were signed by the judge.”
Orsi did not search any vehicles as part of the search of the
motel room, because he was “unaware of any vehicles that
were associated with [Garcia] at that location.” Orsi did not
conduct a search of Garcia’s person at the time of the search
of the motel room or at any other time. Although Orsi inter-
viewed Garcia on October 28, 2015, that interview occurred
“[w]ell after the search” of the motel room. After completing
the search, Orsi filed in the county court a return and inven-
tory stating that he had served the warrant on October 27.
The return and inventory listed various items that were seized
pursuant to the warrant, but notably, the items listed did not
include a robbery note.
At approximately 1:15 a.m. on October 28, 2015, Derrick
Kreikemeier, an Omaha police officer, passed “a blue older
model . . . Chevy Suburban or Tahoe” coming from the oppo-
site direction and noted that it was being driven without a front
license plate. Kreikemeier was a passenger in a patrol cruiser
driven by his partner. As they passed the vehicle, Kreikemeier
observed the driver enough to gather a general description of
the driver. Kreikemeier and his partner turned around to follow
the vehicle and observed that there was also no rear license
plate. They then initiated a traffic stop of the vehicle. The
vehicle initially stopped, but as Kreikemeier approached the
vehicle on foot, the vehicle took off at a high rate of speed.
As he was approaching the vehicle, Kreikemeier had seen an
in-transit sign in the rear window, but he was not able to read
the full date before the vehicle took off. Kreikemeier and his
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partner did not attempt to chase the vehicle, because the stop
was “just for a traffic offense.” However, Kreikemier notified
dispatch to put out a broadcast describing the vehicle, stating
that it had fled from a traffic stop, and giving its direction
of travel.
Later that morning, at approximately 4 a.m., Kreikemier and
his partner were notified that officers had seen the described
vehicle, and they went to the location where the vehicle had
been seen. They spotted the vehicle traveling down a street and
began to follow it. Thereafter, the driver parked the vehicle,
and Kreikemeier saw a man get out of the driver’s-side door
and begin to run south. Kreikemeier yelled for the man to
stop and began a pursuit on foot. When the man was approxi-
mately 20 to 25 feet from the vehicle, he tripped and fell, and
Kreikemeier was able to catch the man. After learning that the
man was named “Carlos Garcia,” Kreikemeier ran a data check
and learned that Garcia had a suspended driver’s license and
that the police robbery unit had issued a “locate” for Garcia for
questioning in connection with a robbery.
Kreikemeier observed that the vehicle was the same vehicle
he had stopped earlier. Kreiekemeier could not say for certain
that Garcia was the same man who was driving the vehicle
in the earlier traffic stop, but he observed that Garcia “fit
the description” of the driver in the earlier stop. Kreikemeier
looked inside the vehicle in order to determine its ownership;
he found a bill of sale which indicated that Garcia had pur-
chased the vehicle for $3,100 on October 27, 2015, the day
prior to the stop. Kreikemeier and his partner arrested Garcia
for driving under suspension and for fleeing the earlier traffic
stop, and they took him to police headquarters for question-
ing by the robbery unit. At the scene of the stop and arrest,
Kreikemeier conducted a pat-down search of Garcia for weap-
ons but did not perform a further search at that time.
After they arrived at police headquarters but just prior
to an interview of Garcia, Kreikemeier “removed all of . . .
Garcia’s property from his person.” The items that Kreikemeier
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removed from Garcia’s person included “$348 cash[,] . . . an
envelope addressed to [Garcia, and] [i]nside the envelope was
a piece of paper with the writing ‘[T]his is a robbery. Put the
money on the counter.’”
Garcia was thereafter arrested in connection with the bank
robbery, and on November 16, 2015, he was charged with
robbery. Prior to trial, on February 4, 2016, the State filed a
motion to determine whether Garcia was competent to stand
trial, and on that same day, the court ordered Garcia to submit
to a psychiatric evaluation to determine his mental competency
to stand trial. After the evaluation was completed, the court
held a hearing at which it received into evidence a report dated
May 13, 2016, and prepared by a forensic psychiatrist who
opined “with a reasonable degree of medical certainty” that
“Garcia at this point is competent to stand trial and he can
cooperate in a reasonable manner with the court proceedings
in his upcoming trial.” Based on the report, the court on June
16 found Garcia to be competent to stand trial. In December,
shortly before trial was set to begin, Garcia’s counsel moved
for a new competency evaluation. Based on interactions the
court had had with Garcia and interactions the court had
observed between Garcia and his counsel, the court overruled
the motion. The court determined that the conclusions from
the May 13, 2016, evaluation were still valid and that “while
[Garcia] has been defiant and uncooperative with his attorney,”
such behavior did not rise “to the level to warrant an additional
competency evaluation.”
Also prior to trial, on June 16, 2016, Garcia filed a motion
to suppress evidence seized as a result of searches of his per-
son, his residence, his motel room, and his vehicle. Garcia
challenged, inter alia, both stops, the issuance and execution
of the search warrant, and the search of his person at police
headquarters. Both Kreikemeier and Orsi testified at the hear-
ing. Kreikemeier testified, inter alia, that the search of Garcia’s
person at police headquarters was done because: “When we
place them in the interview room, we want to make sure that
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they don’t have any type of contraband or weapons that they
could take in there with them and possibly even destroy or
hurt the officer that’s going in.” Kreikemeier testified that in
addition to being sent in for an interview, Garcia was being
arrested for driving under suspension and for fleeing to avoid
arrest and that when a person is being booked, officers have
to take all property off of the person. Kreikemeier testified on
cross-examination that the note was folded inside the envelope
and that he took the note out of the envelope, unfolded it, and
read it. Orsi also testified at the suppression hearing, and on
cross-examination, he acknowledged that the application and
the search warrant made references to “Carlos Gomez,” but he
testified that such references were “typographical error” and
that any references to “Gomez” were facts related to Garcia.
In an order filed November 22, 2016, the district court over-
ruled Garcia’s motion to suppress. With regard to the stops, the
court found that the first stop of the vehicle was justified by
the lack of license plates and the failure to plainly display the
in-transit sign and that the second stop was justified by a rea-
sonable and articulable suspicion that the driver of the vehicle
may be involved in criminal activity due to the fact that the
vehicle had fled from the first stop.
With regard to the search warrant, the court found that
“[a]lthough there were clearly mistakes made in the affidavit
and application,” the statements were typographical errors and
not a false statement made knowingly and intentionally or
with reckless disregard for the truth. The court further found
that facts and evidence set forth in the affidavit supported a
finding of probable cause to search Garcia’s person and his
motel room.
With regard to the search of Garcia’s person at police head-
quarters, the court noted that the search took place the morning
after the search warrant was obtained by Orsi and that Garcia
matched the physical description of the person in the search
warrant. The court found that “officers had probable cause to
arrest [Garcia] for driving under suspension and flight to avoid
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arrest” and that the search of Garcia’s person was incident to
his arrest and “was valid in that the officers had probable cause
to arrest him.” The court also made reference to the search
warrant in connection with its determination that the search of
Garcia’s person was proper.
Garcia’s trial began on January 9, 2017. The State’s wit-
nesses at trial included Ruser, the bank teller. Ruser testified,
inter alia, that after Garcia handed him the note, he felt:
Scared. Very panicked. Not knowing if this was where it
was going to go. I mean, you hear stories and things. You
just never, you know, want it to be one of those horror
stories. You just hope that it would go the way you’re
trained and taught it would go if you follow the proce-
dures properly.
Ruser also testified that he avoided making eye contact with
Garcia, because he wanted “to avoid escalation, not sure if that
would prompt a reaction” and “[n]ot knowing if the person is
dangerous or not . . . if so, eye contact could provoke an attack
or an assault.” Ruser further testified that after Garcia left the
bank, “[t]hat is when the nerves really kicked in. You know,
shaking, shortness of breath, those kinds of things.”
During Ruser’s testimony, the State showed Ruser the note
that had been seized in the search of Garcia’s person, and
Ruser identified it as the note that he was given in the robbery.
The State offered the note into evidence, and Garcia objected
and renewed his motion to suppress the evidence. The court
overruled Garcia’s objection and received the robbery note
into evidence.
Kreikemeier and Orsi also testified at trial. During his
testimony, Kreikemeier identified the note as the one that he
found inside an envelope when he searched Garcia’s person at
police headquarters. Kreikemeier testified that persons going
into an interview room were usually searched and items taken
out of their pockets before they were placed in the interview
room. Orsi testified that he interviewed Garcia at police
headquarters and that he had not personally searched Garcia
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but that Garcia had been searched by the time Orsi got to
the interview room. Orsi further testified: “That’s our policy.
Anytime before anybody goes into our interview rooms, they
need to be thoroughly searched for contraband.” Orsi testified
he saw the note that was found on Garcia’s person and that the
wording of the note “precisely matched the wording that was
described to me from the clerk.”
During a recess in the State’s presentation of evidence,
outside the jury’s presence, Garcia spoke directly to the court
rather than through counsel and stated, “I would like to declare
a mistrial. I’m not being represented to the best of my abil-
ity.” After some discussion with the court regarding procedure,
Garcia asserted that he was “asking [counsel] to do things, and
she’s not doing them.” The court overruled the motion for mis-
trial, and the trial proceeded.
At the close of the State’s case, Garcia moved to dismiss
and the court overruled the motion. Thereafter, Garcia chose to
testify. When Garcia took the stand, counsel asked him to give
his side of the story in response to the testimony of the State’s
witnesses regarding the events of October 27 and 28, 2015.
Garcia generally refused to respond to the State’s evidence
and instead stated that he wished to declare a mistrial and that
his constitutional rights had been violated. The defense rested
without presenting other evidence, and the court overruled
Garcia’s renewed motion to dismiss.
The jury found Garcia guilty of robbery, and the court
accepted the verdict. Prior to sentencing, the court sustained
Garcia’s motion for a new evaluation to determine Garcia’s
competency to stand for sentencing. At the sentencing hearing,
the court received into evidence a report dated September 29,
2017, in which a forensic psychiatrist opined with a reasonable
degree of medical certainty that Garcia was competent to go
through sentencing. The court found Garcia competent to be
sentenced, and it thereafter sentenced Garcia to imprisonment
for 6 to 10 years with credit for time served of 727 days.
Garcia appeals his conviction and sentence.
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ASSIGNMENTS OF ERROR
Garcia claims that the district court erred when it (1) admit-
ted the note into evidence and (2) determined that he was
competent to stand trial and for sentencing. Garcia also claims
that there was insufficient evidence to support his conviction
for robbery. Garcia, who has new counsel on appeal, claims
that his trial counsel provided ineffective assistance in certain
respects that are set forth in greater detail in our analysis.
Garcia claims that even if any one of the above-claimed errors
standing alone does not require reversal of his conviction, the
accumulation of errors does. Garcia finally claims that the dis-
trict court imposed an excessive sentence.
STANDARDS OF REVIEW
[1] When reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Brown, ante p. 53, 921 N.W.2d 804 (2019). Regarding his-
torical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s deter-
mination. Id.
[2] The trial court’s determination of competency will not
be disturbed unless there is insufficient evidence to support the
finding. State v. Martinez, 295 Neb. 1, 886 N.W.2d 256 (2016).
[3] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. McCurdy, 301 Neb. 343,
918 N.W.2d 292 (2018).
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[4,5] Whether a claim of ineffective assistance of trial coun-
sel can be determined on direct appeal presents a question of
law, which turns upon the sufficiency of the record to address
the claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. State v. Hood, 301 Neb. 207, 917 N.W.2d 880
(2018). We determine as a matter of law whether the record
conclusively shows that (1) a defense counsel’s performance
was deficient or (2) a defendant was or was not prejudiced by
a defense counsel’s alleged deficient performance. Id.
[6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d
895 (2018).
ANALYSIS
Admission of Note, Fourth Amendment,
and Inventory Search.
Garcia first claims that the district court erred when it admit-
ted “specific physical evidence” at trial. Garcia’s argument
makes clear that his assignment of error relates specifically to
the note and his objection to admission of the note based on
an alleged violation of his Fourth Amendment rights. Because
we conclude the search of Garcia’s person that resulted in dis-
covery of the note was not an unconstitutionally unreasonable
search, we determine that the court did not err when it admitted
the note.
[7-9] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. State v. Seckinger,
301 Neb. 963, 920 N.W.2d 842 (2018). The ultimate touch-
stone is one of reasonableness. Id. Searches and seizures must
not be unreasonable, and searches without a valid warrant are
per se unreasonable, subject only to a few specifically estab-
lished and well-delineated exceptions. Id.
We note first that much of the argument by both Garcia
and the State centers on the validity of the search warrant and
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in particular the fact that both the application and the war-
rant sometimes refer to “Carlos Gomez” rather than “Carlos
Garcia.” The warrant focused on a search of the room in which
Garcia was staying. Police executed that warrant and filed a
return and inventory, and the note was not among the items that
was found in the search. Because the note was not found in the
search conducted pursuant to the warrant, the validity of the
warrant is not relevant to the question whether the note found
later on Garcia’s person was obtained in violation of Garcia’s
Fourth Amendment rights.
As noted, Garcia’s argument on appeal focuses exclusively
on admission of the note, and the note was not obtained
in the search that was conducted pursuant to the warrant.
Instead, the note was found in a search of Garcia’s person that
was conducted after he was taken to police headquarters and
before he was put into an interview room to be questioned by
Orsi regarding the robbery. Therefore, our analysis focuses on
Garcia’s relevant arguments concerning the events that led to
the discovery of the note. Garcia contends that the investiga-
tory stops that led to his arrest and the search of his person at
police headquarters were invalid. We reject these arguments.
[10,11] The Fourth Amendment guarantee of the right to
be free of unreasonable searches and seizures requires that an
arrest be based upon probable cause and limits investigatory
stops to those made upon an articulable suspicion of criminal
activity. State v. Rodriguez, 288 Neb. 878, 852 N.W.2d 705
(2014). In determining whether there is reasonable suspicion
for an officer to make an investigatory stop, the totality of the
circumstances must be taken into account. Id.
We note that according to the evidence presented at the
suppression hearing, the police made two investigatory stops
before eventually arresting Garcia. The first was a traffic stop
in which the police stopped a vehicle because it did not appear
to have license plates or in-transit tags. The vehicle initially
stopped but drove away as police were approaching the vehi-
cle. The second stop occurred a few hours later when the police
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again saw what they testified was the same vehicle. The police
followed the vehicle but did not initiate a traffic stop. Instead,
the driver of the vehicle, Garcia, pulled over of his own accord
and parked the vehicle. He ran from the vehicle, and the police
thereafter seized him. While not a “traffic stop,” this was an
investigatory stop of Garcia and is analyzed as such.
Garcia argues on appeal that “the traffic stop” was not valid,
but it is not entirely clear whether he is taking issue with the
first or second stop, or both. As explained below, we treat the
first stop as a “traffic stop,” and the second encounter as an
“investigation stop,” and determine that both stops were con-
stitutionally valid. Regarding the first stop, Garcia cites State
v. Childs, 242 Neb. 426, 495 N.W.2d 475 (1993), in which we
held that police did not have reasonable suspicion of criminal
activity when they stopped a vehicle to check whether visible
in-transit tags were valid, because they did not see anything
suspicious or out of the ordinary about the tags. However, after
Childs, in State v. Bowers, 250 Neb. 151, 548 N.W.2d 725
(1996), we held that police had reasonable suspicion to conduct
an investigatory traffic stop of a car’s being operated without
license plates or in-transit tags. We reasoned in Bowers that
“[w]hen an officer observes a vehicle without license plates
or in-transit tags, a particularized and objective basis exists to
justify a reasonable, articulable suspicion that the driver may
be criminally avoiding the motor vehicle registration statutes.”
250 Neb. at 161, 548 N.W.2d at 731.
The first stop in this case was based on a reasonable sus-
picion, because before they made the stop, the police officers
did not see license plates or visible in-transit tags. The fact
that in-transit tags became visible as the police approached
the vehicle on foot does not invalidate the reasonable suspi-
cion that justified the initial traffic stop. This traffic stop was
investigatory in nature, and it did not become invalid simply
because investigation dispelled the initial suspicion.
The second stop occurred after the officers saw the vehicle
a second time. They followed the vehicle but did not initiate a
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traffic stop. Instead, the driver pulled the vehicle over and ran
from the vehicle, and the officers then initiated an investigatory
stop. At that time, the officers had reasonable suspicion based
on their belief that the vehicle was the same vehicle they had
stopped earlier and that had been driven off before they could
contact the driver. At the time of the second stop, the police
had reason to suspect that the driver associated with the first
stop had violated Neb. Rev. Stat. § 28-905(1) (Reissue 2016),
which provides: “Any person who operates any motor vehicle
to flee in such vehicle in an effort to avoid arrest or citation
commits the offense of operation of a motor vehicle to avoid
arrest.” Garcia argues that at the time of the second stop, the
officers were not certain that he had been driving the vehicle
at the time of the first stop. However, the police did not need
definitive proof that he had been driving; they needed only an
articulable suspicion. In this case, Kreikemeier testified that
the vehicle was the same vehicle that had fled the first stop. He
could not say for certain that Garcia was the same man who
had been driving the vehicle at the time of the earlier traffic
stop, but he observed that Garcia “fit the description” of that
driver. This was sufficient to establish an articulable suspicion
of criminal activity.
[12] After the second stop, police learned that Garcia’s
driver’s license was suspended. They therefore arrested Garcia
for driving under suspension and fleeing the earlier traffic stop.
Probable cause to support a warrantless arrest exists only if law
enforcement has knowledge at the time of the arrest, based on
information that is reasonably trustworthy under the circum-
stances, which would cause a reasonably cautious person to
believe that a suspect has committed or is committing a crime.
State v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018). Garcia
does not explicitly argue on appeal that the police did not have
probable cause to arrest him for driving under suspension. He
argues that there was not probable cause to arrest him for flee-
ing the earlier stop, because the police could not say with cer-
tainty that he had been driving the vehicle at the earlier time.
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However, Kreikemeier’s testimony that Garcia “fit the descrip-
tion” of that driver, combined with knowledge obtained in con-
nection with the second stop—particularly the fact that Garcia
was driving on a suspended license and that he attempted to
run from the police after stopping the second time—gave suf-
ficient reason to suspect he had committed the crime of fleeing
to avoid arrest.
Having determined that the stops and the arrest were valid,
we consider whether the search of Garcia’s person during
which the note was discovered was valid. As we discussed ear-
lier, the note was not discovered as part of the search that was
conducted in execution of the search warrant. The search of
Garcia’s person at police headquarters was therefore a search
without a warrant. We determine that the search which led to
the discovery of the note was valid.
[13] As noted above, to be constitutional, searches and
seizures must not be unreasonable, and searches without a
valid warrant are per se unreasonable, subject only to a few
specifically established and well-delineated exceptions. State
v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018). The war-
rantless search exceptions we have recognized include: (1)
searches undertaken with consent, (2) searches under exigent
circumstances, (3) inventory searches, (4) searches of evidence
in plain view, and (5) searches incident to a valid arrest. State
v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). The district
court’s order which overruled Garcia’s motion to suppress
and the State on appeal indicate that we should approve the
search by which the note was discovered as a search incident
to a valid arrest. However, as explained below, we believe the
controlling framework is the inventory search exception to the
warrant requirement and we determine the search was valid on
this basis.
[14,15] Regarding a search incident to arrest, we have
stated that a valid arrest based on probable cause that a per-
son is engaged in criminal activity is allowed by the Fourth
Amendment, and if an arrest is made based upon probable
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cause, a full search of the person may be made incident to that
arrest. State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2016).
As we determined above, the police in this case made a valid
arrest of Garcia. After an arrest is made, the arresting officer
may search an arrestee’s person to remove any weapons that he
or she might use to resist arrest or to effect his or her escape, or
to seize any evidence on the arrestee’s person in order to pre-
vent the concealment or destruction of such evidence. See State
v. Wells, supra. However, we have noted that the justification
for a search incident to a lawful arrest is absent if a search is
remote in time or place from the arrest. State v. Roberts, 261
Neb. 403, 623 N.W.2d 298 (2001). As Garcia notes, in this
case, the police conducted a pat-down search at the time they
arrested Garcia, but that search did not disclose the note. The
search that disclosed the note did not occur until Garcia had
been taken to police headquarters and was being prepared to
go into an interview, arguably remote in time and place from
the arrest.
[16-18] We need not resolve the propriety of the search as
incident to an arrest, because another recognized exception to
the warrant requirement is an inventory search, and we believe
that the search was valid as an inventory search. In our recent
case law, we have more frequently analyzed the inventory
search exception in connection with the search of a vehicle.
See, e.g., State v. Nunez, 299 Neb. 340, 907 N.W.2d 913
(2018). But we have recognized that searches of an arrestee’s
person and effects may be justified as inventory searches. In
State v. Newman, 250 Neb. 226, 237-38, 548 N.W.2d 739, 749
(1996), we noted that both this court and the U.S. Supreme
Court, in Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605,
77 L. Ed. 2d 65 (1983), had “consistently held that inventory
searches after an arrest are permissible.” In State v. Filkin,
242 Neb. 276, 494 N.W.2d 544 (1993), we held that police
had performed a permissible inventory search of the defend­
ant’s purse after her arrest. We further stated in Filkin that
“the propriety of inventory searches is judged by a standard
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of reasonableness” and that “such searches must be performed
in accordance with standard operating procedures.” 242 Neb.
at 279, 494 N.W.2d at 547. We stated that inventory searches
must be conducted pursuant to an established routine, because
“‘an inventory search must not be a ruse for a general rummag-
ing in order to discover incriminating evidence.’” Id. at 282,
494 N.W.2d at 549.
[19] Similarly, in connection with an inventory search of a
vehicle, we recently stated that “inventory searches conducted
according to established policy are reasonable” and that
[i]nventory searches are considered reasonable because
they serve at least three needs unrelated to criminal
investigation: (1) to protect the owner’s property while
it remains in police custody, (2) to protect police against
claims that they lost or stole the property, and (3) to pro-
tect police from potential danger.
State v. Nunez, 299 Neb. at 346, 907 N.W.2d at 917.
[20] In the present case, we consider the testimony of the
police officers at the suppression hearing and at the trial.
See State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017)
(instructing that when motion to suppress is denied pretrial
and again during trial on renewed objection, appellate court
considers all evidence, both from trial and from hearing on
motion to suppress). A review of all such testimony indicates
that the search of Garcia’s person that uncovered the note was
conducted after he was taken to police headquarters and before
he was put into a room to be interviewed by an officer inves-
tigating the robbery. Kreikemeier, the officer who conducted
the search, testified about the purposes for which the search
was done. He testified that before placing a person into an
interview room, police search the person “to make sure that
they don’t have any type of contraband or weapons that they
could take in there with them and possibly even destroy or hurt
the officer that’s going in.” He testified that Garcia was being
arrested and that when a person was being booked, officers
would take all property off the person. Orsi, the officer who
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conducted the interview, testified that police policy in particu-
lar was that “before anybody goes into out interview rooms,
they need to be thoroughly searched for contraband.”
[21] Such testimony by the police officers indicates that the
search of Garcia’s person was conducted pursuant to police
policy. In State v. Filkin, supra, we indicated that the Fourth
Amendment requires that “the State bears the burden of prov-
ing that a law enforcement agency’s search was made pursu-
ant to a standardized criteria or established routine” and that
the testimony of police officers may be used to “establish the
existence of a standard procedure and that the search was con-
ducted in accordance with that procedure.” 242 Neb. at 284-85,
494 N.W.2d at 550.
[22] For completeness, we note that even if Garcia was not
in the process of being booked at the moment of the search, the
evidence shows that he had been arrested and was eventually
going to be booked. The testimony established that an inven-
tory search was standard procedure upon booking, and so the
note would have been discovered in that search. We have rec-
ognized that “evidence which would have been discovered in
the course of a lawful inventory search can be admissible under
the inevitable discovery doctrine.” State v. Ball, 271 Neb. 140,
152, 710 N.W.2d 592, 603 (2006).
We conclude that the search of Garcia’s person that uncov-
ered the note was justified as an inventory search. Because we
determine that the note was not obtained as the result of an
unconstitutional search or seizure, we conclude that the court
did not err when it admitted the note into evidence. We reject
Garcia’s assignment of error.
Competency Determinations.
Garcia next claims that the district court erred when it deter-
mined that he was “competent to proceed legally to trial and to
sentencing.” We conclude that the court did not err in these two
rulings. And for completeness, we also reject Garcia’s argu-
ment that his courtroom behavior should have separately and
additionally led to a finding of incompetence.
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[23] Neb. Rev. Stat. § 29-1823(1) (Cum. Supp. 2018) states
in part that “[i]f at any time prior to trial it appears that the
accused has become mentally incompetent to stand trial, such
disability may be called to the attention of the district or county
court by the county attorney or city attorney, by the accused, or
by any person for the accused.” We have also recognized that
a trial court can determine a defendant’s competency after trial
but prior to sentencing and that it is the obligation of the court
to do so. See State v. Martinez, 295 Neb. 1, 886 N.W.2d 256
(2016). In the present case, the court twice found Garcia to be
competent—on the State’s motion prior to trial and on Garcia’s
motion after conviction but before sentencing.
[24,25] A person is competent to plead or stand trial if he
or she has the capacity to understand the nature and object of
the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make
a rational defense. State v. Haynes, 299 Neb. 249, 908 N.W.2d
40 (2018), disapproved on other grounds, State v. Allen, 301
Neb. 560, 919 N.W.2d 500 (2018). The question of competency
to stand trial is one of fact to be determined by the court, and
the means employed in resolving the question are discretionary
with the court. State v. Fox, 282 Neb. 957, 806 N.W.2d 883
(2011). The trial court’s determination of competency will not
be disturbed unless there is insufficient evidence to support the
finding. State v. Martinez, supra; State v. Fox, supra.
The court in this case first determined that Garcia was
competent prior to trial in response to the State’s motion. The
record shows that the court ordered a psychiatric evaluation.
An evaluation was completed, and a report dated May 13,
2016, by a forensic psychiatrist was received into evidence.
The court found Garcia to be competent to stand trial based
on the report of the forensic psychiatrist who performed the
evaluation. In the report, the forensic psychiatrist opined “with
a reasonable degree of medical certainty” that “Garcia at this
point is competent to stand trial and he can cooperate in a
reasonable manner with the court proceedings in his upcoming
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trial.” The report noted that Garcia had been diagnosed with
“Antisocial Personality Disorder.” However, the psychiatrist
noted that Garcia was “able to tell me that he could very well
understand the nature of the alleged charges against him”; that
Garcia was familiar with the people who would be involved
in the upcoming court proceedings, including the judge, the
State’s attorney, and the public defender, and the roles each
would play in the proceeding; and that he understood proce-
dural aspects of a trial including the need to work with his
attorney to prepare for trial, the process of plea bargaining, the
difference between a bench trial and a jury trial, and the role
and composition of a jury.
After he was convicted but prior to sentencing, Garcia filed
a motion for a new evaluation to determine his competency
to stand for sentencing. The court sustained the motion, and
at the sentencing hearing, the court received into evidence a
report dated September 29, 2017, which was prepared by the
same forensic psychiatrist who had performed the evaluation
prior to trial. The psychiatrist opined with a reasonable degree
of medical certainty that Garcia was not suffering from any
psychotic disorder and was competent to go through the proc­
ess of sentencing. The psychiatrist noted that Garcia’s current
diagnosis was “malingering as well as antisocial personality
disorder.” The psychiatrist further noted that although Garcia
had “reported some delusional thinking,” Garcia had refused
“to take any psychotropic medication” or to participate in
“non-intrusive psychological testing.” The psychiatrist opined
that Garcia “knows well that taking any psychological testing,
as it was the case in the past, will reveal his malingering and
his efforts of avoiding punishment for the crime that he has
committed.” Based on the forensic psychiatrist’s report, the
court found Garcia competent to be sentenced.
We conclude that there was sufficient evidence to support
the court’s findings of competency prior to trial and prior to
sentencing. At the competency hearing prior to trial, Garcia did
not present any evidence or argument to dispute the forensic
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psychiatrist’s May 13, 2016, report. Instead, defense counsel
stated that Garcia “pretty much agrees with most of the obser-
vations and conclusions” in the report and that he had “no
disagreement with the conclusion that at the current time he
is able to assist in his defense and is competent to stand trial.”
At the sentencing hearing, after the State offered the forensic
psychiatrist’s September 29, 2017, report into evidence, Garcia
had no objection and presented no evidence or argument to
dispute the substance of the report. In view of the foregoing,
we believe the record shows that the State presented evidence
which established Garcia’s competency to stand trial and for
sentencing, that Garcia presented no evidence to dispute the
State’s evidence, and that the court’s findings of competency
are based on sufficient evidence. We therefore conclude that
the court did not err when it found Garcia competent to stand
trial and for sentencing.
For completeness, we note that much of Garcia’s argument
in his brief focuses on a contention that during trial, Garcia
“exhibited signs of mental instability consistent with suffering
the negative consequences of an active mental illness.” Brief
for appellant at 22. Garcia asserts that such signs consisted
mainly of “numerous incoherent outbursts during in-court pro-
ceedings.” Id.
Garcia’s argument is outside the scope of his assigned error
addressed to the court’s two rulings discussed above, but we
note that in December 2016, shortly before trial was set to
begin, Garcia’s counsel moved for a new competency evalua-
tion. In response, the court overruled the motion based on its
own interactions with Garcia and interactions the court had
observed between Garcia and his counsel. The court deter-
mined that the conclusions from the May 13, 2016, evaluation
were still valid and that “while [Garcia] has been defiant and
uncooperative with his attorney,” such behavior did not rise “to
the level to warrant an additional competency evaluation.”
We have stated that “[a] defendant’s derangement . . . is
not sufficient to prove incompetence to stand trial.” State v.
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Grant, 293 Neb. 163, 195, 876 N.W.2d 639, 664-65 (2016).
In Grant, we determined that the defendant’s “mere impulsive
behavior during trial [was] not sufficient to raise the issue of
incompetence” when an evaluation conducted prior to trial had
shown him to be competent to stand trial. 293 Neb. at 195,
876 N.W.2d at 665. The behavior of the defendant in Grant
included “outburst[s]” as well as an incident in which he alleg-
edly “hit one of the court deputies” and another incident in
which he “struck his defense attorney in the presence of the
jury.” 293 Neb. at 174-75, 876 N.W.2d at 653. Based on Grant,
we determine that to the extent Garcia complains of error, the
court did not err when it overruled Garcia’s December 2016
motion to determine competency.
Sufficiency of the Evidence.
Garcia next claims that there was insufficient evidence to
support his conviction for robbery. We conclude that the evi-
dence was sufficient to sustain the conviction.
Garcia was convicted of robbery in violation of Neb. Rev.
Stat. § 28-324 (Reissue 2016), which provides that one “com-
mits robbery if, with the intent to steal, he forcibly and by
violence, or by putting in fear, takes from the person of another
any money or personal property of any value whatever.” Garcia
argues that there was no evidence that he used force or vio-
lence. However, § 28-324 provides that robbery may be com-
mitted “forcibly and by violence” or “by putting in fear.” In the
present case, we conclude that there was evidence that Garcia
took money from the person of another “by putting [the victim]
in fear.”
The evidence showed that Garcia walked into a bank and
handed a teller a note that read, “THIS IS A ROBBERY PUT
THE MONEY ON THE COUNTER.” The teller testified that
upon reading the note, he “[f]roze” out of “[f]ear, panic.” The
teller further described his reaction as being “[s]cared” and
“[v]ery panicked” and that he was uncertain whether Garcia
was dangerous and whether making eye contact with Garcia
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“could provoke an attack or an assault.” The teller testified that
he collected the cash that was in his drawer, then placed it on
the counter and backed away, and that Garcia picked up the
note and left the bank with the cash.
Nebraska’s robbery statute, § 28-324, includes the element
of taking by “putting [the victim] in fear.” Whether to apply
an objective test to the “putting in fear” aspect of robbery
has long been discussed. See Wayne R. LaFave, Criminal
Law § 20.3(d)(2) (6th ed. 2017). Florida has a robbery statute
which, like Nebraska’s statute, includes an element of “put-
ting in fear.” See Fla. Stat. Ann. § 812.13(1) (West 2016). In
Delgado v. State, 105 So. 3d 612, 613 (Fla. App. 2013), the
Florida appellate court stated that “for there to be a ‘fear’-
based robbery within the meaning of the statute, the trier of
fact must determine whether the defendant’s conduct would
have placed a reasonable person, not just the actual victim, in
fear.” This analysis gives due regard to whether “the defend­
ant’s behavior [was] calculated to produce” fear. See LaFave,
§ 20.3(d)(2) at 1325. In Delgado, the court specifically deter-
mined that the defendant put a bank teller “in fear” when he
handed her a note stating “‘this is a robbery’” and demanded
money. 105 So. 3d at 613.
Other jurisdictions have statutory provisions similar to
Nebraska’s “putting in fear” element but phrased in terms of a
“threat of force” or “intimidation.” Regardless of the specific
statutory language, when there is evidence of a robbery note,
the context surrounding the incident will be taken into account.
In Washington v. Farnsworth, 185 Wash. 2d 768, 374 P.3d 1152
(2016), the court determined that a handwritten note demand-
ing money from a bank teller contained an implied threat of
force. In Farnsworth, the court reasoned a threat was present
in the context of that case, because the demand for money was
“‘unsupported by even the pretext of any lawful entitlement
to the funds.’” 185 Wash. 2d at 779, 374 P.3d at 1158 (quot-
ing State v. Collinsworth, 90 Wash. App. 546, 966 P.2d 905
(1997)). See, also, United States v. Hopkins, 703 F.2d 1102,
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1103 (9th Cir. 1983) (finding sufficient “intimidation” for rob-
bery when defendant presented teller note stating “‘[t]his is a
robbery’” and demanding money). See, also, LaFave, supra.
[26] We agree with the reasoning of the foregoing authori-
ties. Merging the principles just recited, we hold that to find
the element of taking “by putting in fear” under the robbery
statute, § 28-324, the finder of fact must determine from the
context established by the evidence, whether the defendant’s
conduct would have placed a reasonable person in fear. In the
present case, the context includes a robbery note.
We apply the foregoing legal standard to the evidence in
this case. The evidence showed that Garcia walked into a
bank and handed the teller a note that stated, “THIS IS A
ROBBERY PUT THE MONEY ON THE COUNTER.” The
teller described the incident in detail in addition to his reaction.
We determine that the evidence was sufficient to establish the
statutory requirement that Garcia committed robbery by “put-
ting [the victim] in fear.” See § 28-324.
The evidence in this case was sufficient to support a convic-
tion for robbery in violation of § 28-324. We therefore reject
Garcia’s claim that his conviction was not supported by suf-
ficient evidence.
Ineffective Assistance Claims.
[27] Garcia, who has new counsel on appeal, claims that his
trial counsel provided ineffective assistance in certain respects.
When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel’s ineffective performance
which is known to the defendant or is apparent from the record,
otherwise, the issue will be procedurally barred in a subsequent
postconviction proceeding. State v. Golyar, 301 Neb. 488, 919
N.W.2d 133 (2018). Garcia specifically claims he was pro-
vided ineffective assistance when trial counsel (1) failed to
obtain a second opinion regarding his mental illness, (2) failed
to move for a mistrial when his mental illness disrupted trial
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proceedings, (3) failed to present a meaningful defense, and
(4) failed to seek a dismissal prior to trial based on a violation
of Neb. Rev. Stat. § 29-1207 (Reissue 2016), the speedy trial
statute. We determine that the record on direct appeal is insuf-
ficient to consider the first two claims, that the third claim is
not sufficiently stated, and that the record shows that the fourth
claim is without merit.
[28,29] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
for postconviction relief to recognize whether the claim was
brought before the appellate court. State v. Golyar, supra. The
fact that an ineffective assistance of counsel claim is raised on
direct appeal does not necessarily mean that it can be resolved.
Id. The determining factor is whether the record is sufficient to
adequately review the question. Id.
In his first two claims of ineffective assistance, Garcia
asserts that trial counsel failed to obtain a second opinion
regarding his mental illness and failed to move for a mistrial
when his mental illness disrupted trial proceedings. He alleges
that counsel had firsthand knowledge of Garcia’s mental ill-
ness and how manifestations of such illness interfered with
attorney-client communications and Garcia’s ability to assist in
preparations for trial. He claims that counsel relied on mental
health evaluations requested by the State and failed to obtain
an independent second opinion that would have shown that
Garcia’s mental illness undermined his ability to meaningfully
participate in his defense. He further claims that counsel should
have moved for a mistrial. The State in its response does not
dispute that Garcia set forth these claims with sufficient partic-
ularity, but it asserts that the record on appeal is not sufficient
to consider the claims.
We agree that the record on appeal is not sufficient to
consider these first two claims. As we discussed above in
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connection with Garcia’s claim that the court erred when it
found him to be competent to stand trial and for sentenc-
ing, the court based such determinations on mental health
evaluations obtained by the State. Garcia’s first two claims
of ineffective assistance would require Garcia to show that
counsel could have obtained a second opinion that would have
called the State’s evaluations into doubt. These claims also
involve consideration of trial strategy, which cannot be done
on direct appeal. Although we determine the claims cannot be
reviewed on direct appeal, we determine that Garcia alleged
deficient performance with sufficient particularity for purposes
of direct appeal.
In his third claim of ineffective assistance, Garcia asserts
that trial counsel “failed to present a meaningful defense case-
in-chief.” He argues that the defense was limited to adducing
testimony from Garcia in his own defense, and he criticizes
counsel for “putting Garcia’s mental illness on full display for
a jury” when counsel was not pursuing a defense of not guilty
by reason of insanity. Brief for appellant at 32. Garcia argues
that the defense presented by counsel, “including counsel’s
failure to pursue a defense rooted in a theory of not guilty
by reason of insanity,” was not a reasonable strategic choice
but instead was ineffective assistance evident on the face of
the record. Id. The State asserts in response that Garcia did
not raise this claim with sufficient particularity; the State
argues that Garcia does not specify what evidence should
have been presented or what defense theory counsel should
have pursued.
We agree with the State that Garcia did not state his third
claim with sufficient particularity. Garcia does not specify
any additional evidence that should have been presented by
defense counsel or that would have supported an insanity
defense. Instead, he argues that ineffectiveness for failure to
present such defense is evident from the record on appeal. As
we have discussed above with regard to Garcia’s assignment of
error regarding the court’s competency evaluation, the record
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supports the district court’s determination that Garcia was
competent to stand trial and sentencing. Because the record
supports a competency determination, a fortiori the record
does not clearly show that counsel should have pursued an
insanity defense. In order to support a claim that counsel was
ineffective for failing to pursue such a defense, Garcia cannot
rely on the record on appeal and instead would need to allege
with specificity what evidence would support such defense. He
failed to do so, and we therefore conclude that the record on
appeal does not support this third claim, and Garcia did not
state the claim with sufficient particularity to preserve it for
postconviction review.
In his fourth and final claim of ineffective assistance,
Garcia asserts that counsel was ineffective for failing to seek
a dismissal prior to trial based on a violation of the speedy
trial statute. Nebraska’s speedy trial statute, § 29-1207(1),
provides that a person “indicted or informed against for any
offense shall be brought to trial within six months” as calcu-
lated under the statute; § 29-1207(2) generally provides that
the 6-month period shall commence on the date the informa-
tion is filed; and § 29-1207(4) provides for certain periods of
time that shall be excluded in calculating the time for trial.
Garcia states that the State filed the information against him
on November 16, 2015, and proceeded to trial on January 9,
2017. Garcia argues that this period of time, “including excep-
tions pursuant to § 29-1207(4),” is greater than the 6 months
allowed under the statute. Brief for appellant at 33. Although
his argument appears to recognize there were periods of time
that were excludable under § 29-1207(4), Garcia does not
specify any such periods and does not specify or dispute any
periods that the court or the State may have characterized
as excludable.
The State argues in its response that there were at least two
excludable periods that extended the 6-month period such that
the statute was not violated. The State agrees that the informa-
tion was filed on November 16, 2015, and that Garcia was
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brought to trial on January 9, 2017. But, the State asserts, the
record shows that “from February 4, 2016, until June 16, 2016,
Garcia’s competency was at issue” and that “from June 16,
2016, until November 22, 2016, there was a pending motion to
suppress for the district court to rule on.” Brief for appellee at
22. The State asserts that such periods total 292 days; that the
periods are excludable under § 29-1207(4); that excluding such
periods extended the deadline to bring Garcia to trial to March
4, 2017; and that therefore, Garcia was timely brought to trial
on January 9, 2017.
The record on appeal is consistent with the State’s recita-
tion of events. The record shows that the information was
filed on November 16, 2015, and that the trial started on
January 9, 2017. The record also shows that on February 4,
2016, the State filed a motion for an order to require Garcia to
submit to a psychiatric examination in order to determine his
competency to stand trial. On that same day, the court filed
an order requiring the examination. On June 16, the court
filed an order finding Garcia to be competent. Also on June
16, Garcia filed a motion to suppress evidence obtained as a
result of searches of his person and his property. The court
filed an order on November 22 overruling Garcia’s motion
to suppress.
Section 29-1207(4)(a) provides that the time periods that
shall be excluded in computing the time for trial include, inter
alia, “[t]he period of delay resulting from . . . an examination
and hearing on competency” and “the time from filing until
final disposition of pretrial motions of the defendant, including
motions to suppress evidence.” Therefore, under § 29-1207(4),
both the time period from February 4, 2016, when the State
moved for and the court ordered an examination to determine
competency, through June 16, when the court found Garcia to
be competent, and the time period from June 16, when Garcia
filed his motion to suppress, through November 22, when the
court overruled the motion, are to be excluded in computing
the time for trial.
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Furthermore, although the State does not rely on it, we
note that the record indicates that the court filed an order on
December 7, 2016, in which it stated that this matter had come
on for jury trial on December 5, but that Garcia had moved
to continue the trial. After advising Garcia that if continuance
were granted the time until trial would not count against the
State for speedy trial purposes, the court continued the trial to
January 9, 2017. Section 29-1207(4)(b) provides that the time
periods that shall be excluded in computing the time for trial
include “[t]he period of delay resulting from a continuance
granted at the request or with the consent of the defendant or
his or her counsel.”
We agree with the State that the two periods identified by
the State were to be excluded under § 29-1207(4) and that
excluding such periods, even without considering the continu-
ance requested by Garcia, Garcia was brought to trial within
the 6 months allowed under § 29-1207. Therefore, the record
on appeal refutes Garcia’s fourth claim of ineffective assist­
ance of counsel.
In sum, we conclude that Garcia’s first two claims of inef-
fective assistance of trial counsel cannot be reviewed on direct
appeal but that they were stated with sufficient particularity to
be preserved for postconviction review. We further conclude
that Garcia’s third claim of ineffective assistance of trial
counsel was not stated with sufficient particularity to be con-
sidered on direct appeal or to be preserved for postconviction
review. We finally conclude that the record on appeal shows
that Garcia’s fourth claim of ineffective assistance of trial
counsel is without merit.
Cumulative Error.
Garcia claims that even if none of the alleged errors dis-
cussed above was in itself sufficient to warrant reversal of
his conviction, the cumulative effect of such alleged errors
requires reversal. We have recognized that although one or
more trial errors might not, standing alone, constitute preju-
dicial error, their cumulative effect may be to deprive the
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defendant of his constitutional right to a public trial by an
impartial jury. State v. Smith, 292 Neb. 434, 873 N.W.2d 169
(2016). However, as discussed above, we find no error and
therefore Garcia’s argument that cumulative error deprived
him of his right to a fair trial is without merit.
Excessive Sentence.
Garcia finally claims that the district court imposed an
excessive sentence. We conclude that the district court did not
abuse its discretion in sentencing Garcia.
Robbery is a Class II felony under § 28-324(2). Under Neb.
Rev. Stat. § 28-105 (Reissue 2016), a Class II felony is sub-
ject to a sentence of imprisonment for a minimum of 1 year
and a maximum of 50 years. Therefore, Garcia’s sentence of
imprisonment for 6 to 10 years was within statutory limits,
and we review his sentencing for an abuse of discretion by the
district court.
[30-32] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discre-
tion in considering and applying the relevant factors as well
as any applicable legal principles in determining the sentence
to be imposed. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895
(2018). In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are the defendant’s (1)
age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-
abiding conduct, and (6) motivation for the offense, as well as
(7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime. Id. The appropriate-
ness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life. Id.
Garcia generally argues that the district court did not place
sufficient emphasis on mitigating factors such as “the mild
nature of the robbery” and Garcia’s “unaddressed mental health
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issues.” Brief for appellant at 36. Garcia argues that the court
did not explicitly address certain relevant factors identified in
our case law and set forth above, such as his age, education
and experience, and social and cultural background.
Garcia also argues that the court failed to explicitly analyze
the factors set forth in Neb. Rev. Stat. § 29-2260 (Reissue
2016) and that therefore the court “unfairly deprived Garcia of
a just sentence.” Brief for appellant at 37. Although Garcia’s
argument appears to focus on the length of his sentence, we
note that § 29-2260(2) and (3) set forth factors a court should
consider when deciding whether to withhold a sentence of
imprisonment and instead impose a sentence of probation. We
further note that we have said that § 29-2260 is a directive to
the trial court as to the factors to be considered in imposing the
sentence but that it contains no requirement that the court make
specific findings. State v. Hunt, 214 Neb. 214, 333 N.W.2d 405
(1983). Therefore, the court’s alleged failure to explicitly ana-
lyze the § 29-2260 factors is not in itself error or grounds for
reversal; however, we do consider the applicable factors from
§ 29-2260 and from case law in reviewing whether the court
abused its discretion in sentencing.
At the sentencing hearing in this case, the court set forth
various factors it had considered in determining Garcia’s sen-
tence, including his age and the nature of the current offense.
With regard to the current offense, the court specifically
noted the testimony of witnesses at the bank regarding “the
fear that they experienced.” The court also noted Garcia’s
prior criminal history, which the court noted included vio-
lent offenses and showed that Garcia had not “gone for very
lengthy periods of time without having entries on [his] record.”
The court particularly noted that Garcia had been convicted
of manslaughter, for which he had been sentenced to impris-
onment for 15 to 20 years, and that after he was paroled
on that conviction, his parole was revoked. The court also
noted Garcia’s mental health issues and stated that such issues
needed to be addressed. The court stated that Garcia had a
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“need for rehabilitation” but had been resistant to past reha-
bilitation efforts; the court expressed hope that while serving
the sentence imposed in this case, Garcia would make himself
available to “what programs are offered through the Nebraska
Department of Correctional Services.”
Our review of the record in this case indicates that the court
considered relevant factors, and the record does not indicate
that the court considered any improper factors. We further
note that Garcia’s sentence of imprisonment for 6 to 10 years
is at the lower end of the statutory range of 1 to 50 years.
We determine the sentence imposed by the court was within
its discretion, and there is no indication in the record that the
court abused its discretion. We therefore reject this assignment
of error.
CONCLUSION
We conclude that the district court did not err when it admit-
ted the note into evidence or when it determined that Garcia
was competent to stand trial and for sentencing. We further
conclude that there was sufficient evidence to support Garcia’s
conviction for robbery and that the district court did not abuse
its discretion in sentencing Garcia. We finally conclude with
regard to each of Garcia’s claims of ineffective assistance of
trial counsel that the claim either is without merit or is not suf-
ficiently stated or that although the claim is sufficiently stated
for postconviction review, it cannot be reviewed on direct
appeal. We therefore affirm Garcia’s conviction and sentence
for robbery.
A ffirmed.