State v. Brooks ( 2014 )

Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 419
Cite as 22 Neb. App. 419CONCLUSION
Pursuant to the Department’s rules, the time to file a peti-
tion for redetermination cannot be extended. We find that
this rule is controlling and that as a result, the district court
properly affirmed the decision of the Department that Lyman-
Richey’s petition for redetermination was not timely filed
with the Department. An appellate court will affirm a lower
court’s ruling that reaches the correct result, although based
on different reasoning. Feloney v. Baye, 283 Neb. 972, 815
N.W.2d 160 (2012). Thus, the decision of the district court
is affirmed.
Affirmed.
State of Nebraska, appellee, v.
Corey A. Brooks, appellant.
___ N.W.2d ___
Filed October 14, 2014. No. A-13-760.
1. Constitutional Law: Miranda Rights: Self-Incrimination. In Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the U.S.
Supreme Court sought to protect the Fifth Amendment privilege against com-
pelled self-incrimination from the inherently compelling pressures of custodial
interrogation. To do so, the Court required law enforcement to give a particular
set of warnings to a person in custody before interrogation: that he has the right
to remain silent, that any statement he makes may be used as evidence against
him, and that he has the right to an attorney, either retained or appointed.
2. Miranda Rights: Self-Incrimination. While the particular rights delineated
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
are absolute, the language used to apprise suspects of those rights is not.
3. ____: ____. The inquiry in reviewing Miranda warnings is simply whether the
warnings reasonably convey to a suspect his rights.
4. Constitutional Law: Right to Counsel. Once the adversary process has been
initiated, the Sixth Amendment guarantees a defendant the right to have counsel
present at all “critical” stages of the criminal proceedings.
5. Constitutional Law: Right to Counsel: Waiver. The Sixth Amendment right to
counsel may be waived by a defendant, so long as the relinquishment of the right
is voluntary, knowing, and intelligent.
6. Constitutional Law: Miranda Rights: Right to Counsel: Waiver. When a
defendant is read his Miranda rights (which include the right to have counsel
present during interrogation) and agrees to waive those rights, that typically
“does the trick” with regard to the requirement that such waiver be voluntary,
Decisions of the Nebraska Court of Appeals
420 22 NEBRASKA APPELLATE REPORTS
knowing, and intelligent, even though the Miranda rights purportedly have their
source in the Fifth Amendment.
7. ____: ____: ____: ____. As a general matter, an accused who is admonished with
the warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966), has been sufficiently apprised of the nature of his Sixth
Amendment rights, and of the consequences of abandoning those rights, so that
his waiver on this basis will be considered a knowing and intelligent one.
8. Right to Counsel. Once an accused has invoked his right to counsel, he is not
subject to further interrogation by the authorities until counsel has been made
available, unless he initiates the contact.
9. Constitutional Law: Right to Counsel: Attorney and Client. Inherent in the
Sixth Amendment right to counsel is the assurance of confidentiality and privacy
of communication with counsel.
10. Right to Counsel. The right to counsel is violated when a state agent is present
at confidential attorney-client conferences.
11. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
12. Effectiveness of Counsel: Records: Appeal and Error. On direct appeal, the
resolution of ineffective assistance of counsel claims turns upon the sufficiency
of the record.
13. ____: ____: ____. 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.
14. Criminal Law: Effectiveness of Counsel: Records: Appeal and Error. The
trial record reviewed on appeal in a criminal case is devoted to issues of guilt and
innocence and does not usually address issues of counsel’s performance.
15. Effectiveness of Counsel: Appeal and Error. A defendant alleging that trial
counsel was ineffective is required to specifically assign and argue his trial coun-
sel’s allegedly deficient conduct.
16. Effectiveness of Counsel: Records: Proof: Appeal and Error. On direct appeal,
an appellate court can determine whether the record proves or rebuts the merits of
a claim of ineffective assistance of trial counsel only if it has knowledge of the
specific conduct alleged to constitute deficient performance.
17. Effectiveness of Counsel: Appeal and Error. Specific allegations of preju-
dice are not required when the issue of counsel’s performance is raised on
direct appeal.
Appeal from the District Court for Douglas County: Joseph
S. Troia, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
appellant.
Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 421
Cite as 22 Neb. App. 419Jon Bruning, Attorney General, and George R. Love for
appellee.
Inbody, Chief Judge, and Irwin and Bishop, Judges.
Irwin, Judge.
I. INTRODUCTION
Corey A. Brooks appeals his convictions for manslaughter,
use of a deadly weapon to commit a felony, and possession of
a deadly weapon by a prohibited person. On appeal, Brooks
challenges the denial of motions to suppress and alleges his
various trial attorneys provided ineffective assistance of coun-
sel. We find that Brooks’ assertions regarding counsel cannot
be resolved on the record provided, and we otherwise find no
merit to Brooks’ assertions on appeal. We affirm.
II. BACKGROUND
This case is closely related to and interwoven with State v.
Brooks, post p. 435, ___ N.W.2d ___ (2014). The charges in
that case arose largely out of evidence seized upon Brooks’
arrest upon the execution of an arrest warrant issued related
to the charges in the instant case. Because of the interwoven
nature of the evidence and procedural posture of the two cases,
we take judicial notice of the appellate record presented in
State v. Brooks. See Dowd Grain Co. v. County of Sarpy, 19
Neb. App. 550, 810 N.W.2d 182 (2012) (appellate court may
examine and take judicial notice of proceedings and judg-
ment of interwoven cases). See, also, Pennfield Oil Co. v.
Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008) (appellate
court may take judicial notice of documents filed in separate
but related action).
The events giving rise to this case occurred during the eve-
ning hours of September 2, 2011. On that date, Omaha Police
Department (OPD) officers answered a radio call of a shooting
and found the victim, James Asmus, deceased, in a detached
garage. Officers observed a gunshot wound to Asmus’ head.
Asmus had also been shot in the leg.
OPD officers investigated Asmus’ death and conducted
numerous interviews with several witnesses and suspects, exe-
cuted search warrants, and investigated telephone records. As
Decisions of the Nebraska Court of Appeals
422 22 NEBRASKA APPELLATE REPORTS
a result of that investigation, officers determined that Brooks
and a number of other individuals had been in the garage or
near the door to the garage at the time of Asmus’ shooting.
Information obtained during the investigation suggested that on
the date in question, Brooks and Asmus got into an argument,
during which Brooks grabbed Asmus by the hair and threw him
to the floor. A few minutes later, Asmus was apparently seated
on a stool and Brooks fired a shot toward Asmus’ feet and then
shot Asmus in the leg. Two other suspects apparently also fired
shots at Asmus, and one of the shots struck Asmus in the head.
Throughout the investigation, Brooks denied possessing a gun
or shooting Asmus.
On or around September 3, 2011, OPD Sgt. Donald Ficenec
was contacted by an attorney, Bill Eustice, who indicated that
he represented Brooks and that Brooks “wanted to come make
a statement to the Omaha police,” but Eustice was at that time
out of town and wanted to arrange a statement for the fol-
lowing week. Prior to arrangements’ being made and Brooks’
making a statement, however, OPD officers obtained and
executed an arrest warrant.
OPD officers executed the arrest warrant on September 10,
2011. After conducting surveillance on a location at which
they believed Brooks to be located, officers identified Brooks
getting into a vehicle. As officers approached, Brooks ran.
Numerous officers gave chase and eventually apprehended
Brooks. A search of Brooks’ person and the area through
which he had run resulted in the location of drugs, cash, and
a gun.
On September 11, 2011, after being arrested and booked,
Brooks indicated to corrections officers that he wished to
speak to OPD officers. Brooks was transported to an OPD
interview room. In light of the fact Brooks’ attorney, Eustice,
had contacted Ficenec previously, as noted above, Ficenec
called Eustice and allowed Brooks to speak with Eustice on
the telephone, privately, prior to any OPD interview of Brooks.
After Brooks finished speaking with Eustice, Brooks gave
the telephone to Ficenec and Eustice indicated to Ficenec
that “Brooks had indicated to [Eustice] that he was going to
tell [OPD officers] the same information that . . . Brooks had
Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 423
Cite as 22 Neb. App. 419already told . . . Eustice.” After Brooks spoke with Eustice,
he was advised of his Miranda rights and was interviewed by
another OPD officer.
During the September 11, 2011, interview, Brooks main-
tained repeatedly that he had not possessed a gun at the
time that Asmus had been shot. The OPD officer who inter-
viewed Brooks indicated that throughout the interview, Brooks
“changed his statement several times about where he was in
the garage when all this happened,” but the officer agreed that
Brooks had not changed his statement in terms of not pos-
sessing a gun. During the interview, Brooks minimized his
involvement. Although Brooks may have made a statement
during the interview concerning being caught with a gun at
the time of his arrest, the record indicates that the gun located
at the time of Brooks’ arrest was not one of the guns used to
shoot Asmus.
Brooks also spoke with OPD officers in interviews that
occurred on October 30 and December 22, 2011. Both times,
in events comparable to the September 11 interview, Brooks
requested to speak with OPD officers despite having coun-
sel. Ficenec indicated that Brooks contacted him approxi-
mately 13 times between late October and December 2011.
During the October and December interviews, Brooks contin-
ued to maintain that he had not possessed a gun on the date of
the homicide.
In February 2012, Eustice was allowed to withdraw from
representing Brooks. Another attorney entered an appearance
on behalf of Brooks. In August, this second attorney was
allowed to withdraw from representing Brooks. A third attor-
ney was appointed to represent Brooks. Additionally, another
attorney appeared as cocounsel with the third attorney on
behalf of Brooks.
In July 2012, during the second attorney’s argument to the
court concerning his request to withdraw from representa-
tion of Brooks, he indicated that he had given Brooks a copy
of police reports concerning the investigation into Brooks’
case. Brooks’ personal possession of police reports while
incarcerated was contrary to a “Receipt of Discovery” agree-
ment that had been signed on behalf of Eustice, during his
Decisions of the Nebraska Court of Appeals
424 22 NEBRASKA APPELLATE REPORTS
representation of Brooks, and signed by the second attorney
during his representation of Brooks. The State alleged that
Brooks’ personal possession of police reports violated “office
policies and create[d] a risk of witness interference, harass-
ment and tampering.” As a result, the State contacted the
Douglas County Department of Corrections and asked that all
police reports be confiscated from Brooks’ possession. The
confiscated materials were then sealed and eventually turned
over to the State.
The State then attempted to have Brooks’ then-counsel
in State v. Brooks, post p. 435, ___ N.W.2d ___ (2014),
the aforementioned third attorney (who had not yet been
appointed in the instant case), review the materials and
remove any work product. The sealed materials were opened,
and the attorney was requested to take possession of the
materials and remove any work product; he refused to take
possession of the materials. The materials were then locked
in an evidence room.
In July 2012, Brooks filed a second amended motion to
suppress, in which he sought to suppress, “from use against
[Brooks], any and all evidence contained in the police reports
associated with” the instant case. Brooks alleged that a variety
of his constitutional rights had been violated by the confisca-
tion of police reports from his cell. In August, the State filed a
motion seeking to have Brooks compelled to review the confis-
cated material and remove any work product.
At a hearing on Brooks’ motion to suppress evidence con-
tained in the police reports, Brooks testified at length about the
police reports that had been confiscated from his possession.
He testified that he had previously reviewed the police reports
with his counsel, that together they had made notes and under-
lined information on the police reports, and that the reports
had his “writing, underlining and notes written on almost every
page.” When Brooks was shown the reports confiscated from
his possession, he testified that a number of pages appeared to
be missing.
The two exhibits that compose the reports confiscated
from Brooks’ possession are together more than 500 pages in
length. Although the testimony before the trial court reflected
Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 425
Cite as 22 Neb. App. 419that the reports were contained in a variety of “envelopes” and
were testified to in conjunction with references to the reports
in each of approximately nine envelopes, the exhibits pre-
sented to this court on appeal do not contain those envelopes
and, instead, include simply a series of police reports with a
blank blue sheet inserted occasionally between them, through-
out; our review suggests that the blue sheets and the contents
between them do not correspond to any particular envelopes
or to any indication of the specific reports within a particular
envelope as testified to before the trial court. A review of the
police reports presented to this court indicates that few of the
more than 500 pages include any kind of markings, and the
markings that do appear generally consist of either underlining
of small portions of a report or a handwritten reference, at the
top of a page, to the name of the particular witness that the
report concerns.
At the conclusion of the hearing on Brooks’ motion to sup-
press, the trial court expressed confusion about what Brooks
was seeking to suppress. When the court specifically asked
Brooks’ counsel what he was seeking to suppress, counsel
indicated, “the evidence that is contained in the police reports.”
The court indicated that it was not going to suppress all of
the evidence contained in police reports on the basis of cop-
ies of the reports’ being confiscated from Brooks. The court
ultimately granted the State’s motion to compel and denied
Brooks’ motion to suppress.
Brooks pled not guilty to an amended information charging
him with manslaughter, use of a deadly weapon to commit a
felony, and possession of a deadly weapon by a prohibited per-
son. Brooks waived his right to a jury trial, and the case was
tried to the court. The State offered the police reports dealing
with the investigation into the homicide involving Asmus. The
court found Brooks guilty on all charges. Brooks was sen-
tenced, and this appeal followed.
III. ASSIGNMENTS OF ERROR
In this appeal, Brooks has assigned three errors. First,
Brooks asserts that “[t]he trial court erred in failing to sup-
press the evidence obtained during Brooks’ September 11,
Decisions of the Nebraska Court of Appeals
426 22 NEBRASKA APPELLATE REPORTS
2011 interview.” Second, Brooks asserts that his case should
be dismissed as a result of the State’s confiscation of the police
reports that had been in his possession; alternatively, he asserts
that he should be granted a new trial. Third, Brooks asserts that
his “respective trial counsels [sic] provided prejudicial ineffec-
tive assistance.”
IV. ANALYSIS
1. September 11, 2011, Interview
Brooks first assigns as error that the district court erred
“in failing to suppress the evidence obtained during Brooks’
September 11, 2011 interview.” The record demonstrates that
Brooks was advised of his rights, was afforded the oppor-
tunity to speak with his counsel, initiated contact with law
enforcement, and voluntarily waived his right to counsel. This
assigned error is without merit.
[1-3] In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), the U.S. Supreme Court sought
to protect the Fifth Amendment privilege against compelled
self-incrimination from the inherently compelling pressures
of custodial interrogation. State v. Nave, 284 Neb. 477, 821
N.W.2d 723 (2012). To do so, the Court required law enforce-
ment to give a particular set of warnings to a person in custody
before interrogation: that he has the right to remain silent,
that any statement he makes may be used as evidence against
him, and that he has the right to an attorney, either retained
or appointed. Id. While the particular rights delineated under
Miranda are absolute, the language used to apprise suspects
of those rights is not. State v. Nave, supra. The inquiry is sim-
ply whether the warnings reasonably convey to a suspect his
rights. Id.
[4-7] The U.S. Supreme Court has noted that once the
adversary process has been initiated, the Sixth Amendment
guarantees a defendant the right to have counsel present at
all “critical” stages of the criminal proceedings. Montejo v.
Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955(2009). Interrogation by the State is such a stage. Id. The Sixth
Amendment right to counsel may be waived by a defend­
ant, so long as the relinquishment of the right is voluntary,
Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 427
Cite as 22 Neb. App. 419knowing, and intelligent. Montejo v. Louisiana, supra. When a
defendant is read his Miranda rights (which include the right
to have counsel present during interrogation) and agrees to
waive those rights, that typically “does the trick,” even though
the Miranda rights purportedly have their source in the Fifth
Amendment. Montejo v. Louisiana, 556 U.S. at 786. As a gen-
eral matter, an accused who is admonished with the warnings
prescribed in Miranda has been sufficiently apprised of the
nature of his Sixth Amendment rights, and of the consequences
of abandoning those rights, so that his waiver on this basis
will be considered a knowing and intelligent one. Montejo v.
Louisiana, supra, quoting Patterson v. Illinois, 487 U.S. 285,
108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988).
In this case, Brooks was read his rights verbatim from the
OPD’s rights advisory form, after he had already been afforded
the opportunity to speak to his counsel. Brooks indicated that
he understood his rights and proceeded to speak with officers.
The warnings were reasonably conveyed to Brooks, he actually
spoke with counsel, and he waived his rights.
[8] In Montejo v. Louisiana, supra, the Court recognized
that once an accused has invoked his right to counsel, he is not
subject to further interrogation by the authorities until counsel
has been made available, unless he initiates the contact. See,
also, Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L.
Ed. 2d 378 (1981). Brooks points to Edwards as support for his
argument that he had invoked his right to counsel and that the
right was infringed by the September 11, 2011, interrogation.
We disagree.
The record in this case is clear. Brooks initiated the con-
tact with law enforcement before each interview, including
the September 11, 2011, interview. Indeed, at the time of the
September 11 interview, Brooks requested to speak to law
enforcement and law enforcement contacted Brooks’ counsel
and had Brooks speak with his counsel. Brooks indicated a
desire to speak with law enforcement after speaking with his
counsel and affirmatively waived his rights.
Brooks argues on appeal that evidence should have been
suppressed because his waiver was limited to an authorization
“to elicit a specific statement regarding the homicide” and that
Decisions of the Nebraska Court of Appeals
428 22 NEBRASKA APPELLATE REPORTS
the specific statement was an exculpatory statement. Brief for
appellant at 9. Specifically, Brooks argues in his brief that
law enforcement “accepted Brooks’ subsequent waiver of his
[Miranda] rights after [counsel] advised both Brooks and [law
enforcement] that police were authorized to elicit a specific
statement regarding the homicide charged in the instant case.”
Id. The record does not support this assertion.
The portion of the record cited by Brooks in support of the
above assertion does not include any such testimony. Rather,
the record indicates that Ficenec spoke with Brooks’ counsel,
Eustice; that Eustice did not communicate any issues or prob-
lems with an interview of Brooks; and that Eustice indicated
that Brooks “was going to tell [law enforcement] the same
information that [he] had already told” Eustice. Ficenic testi-
fied that Eustice did not put any parameters on the interview
that was to take place and did not indicate that anything
was “off limits.” Eustice also testified, but he did not testify
that he put any restrictions or limitations on the interview
of Brooks.
Eustice was asked if, during his telephone conversation
with Brooks on September 11, 2011, any information was
given to him “about [Brooks’] actually being in the homi-
cide interrogation room and being under arrest for murder,”
and Eustice indicated that although “[n]othing specifically”
had been said, he “just assumed that [Brooks] was” because
Ficenec had initiated the telephone call. Eustice also testified
that his “reasoning behind suggesting that . . . Brooks talk
to [officers] is because [Brooks’] version of what occurred
was exculpatory.”
Brooks repeatedly asserts throughout his argument that
OPD officers violated his rights and did not effectively make
counsel available because they “knowingly exceeded the
scope of the authorization granted . . . by Eustice when
[they] rejected the specific statement authorized by Eustice
and elicited incriminating statements regarding the homicide.”
Brief for appellant at 9. Brooks argues that officers “failed
to recognize or failed to honor the limitations placed on the
interview by Eustice” and that the information Eustice autho-
rized officers to get from Brooks “consisted of a specific
Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 429
Cite as 22 Neb. App. 419exculpatory statement concerning the homicide.” Id. at 11 and
12. The record presented by Brooks, however, does not sup-
port this suggestion.
Finally, we note that although the interviews of Brooks were
recorded, sometimes with both audio and visual recording and
sometimes with only audio recording, the actual recordings of
the interviews were not offered as evidence in the bench trial.
Rather, the State offered two exhibits which comprised the
police reports regarding the homicide and the autopsy report.
Those police reports do include references to the statements
Brooks made during the interviews, but the totality of the
interviews was never offered or received as evidence in the
bench trial.
In this case, Brooks initiated contact with law enforce-
ment, was afforded the opportunity to speak with his counsel,
was advised of all of his rights, and voluntarily waived those
rights. The district court did not err in overruling the motion
to suppress.
2. Confiscation of
Police R eports
Brooks next assigns as error that the charges brought
against him “should be dismissed because the State violated
Brooks’ constitutional right to private communications with
counsel when it raided Brooks’ cell without his knowledge
and confiscated his confidential work product.” In the alter-
native, Brooks seeks to have the convictions reversed and
the matter remanded for a new trial. This assigned error
is meritless.
As noted above in the background section, during the course
of these proceedings, one of Brooks’ attorneys provided him
with copies of police reports, in violation of Douglas County
policies and discovery agreements signed by Brooks’ counsel.
The State then had law enforcement confiscate the materials
and took steps to have Brooks’ counsel review the materials
and remove any work product. The evidence adduced at trial
uniformly indicated that the State never looked at any of the
materials and was not aware of whether any work product
appeared on any of the materials.
Decisions of the Nebraska Court of Appeals
430 22 NEBRASKA APPELLATE REPORTS
Brooks argues that the privacy of his communications with
his counsel was violated because the confiscated materials
included “work product generated by Brooks both indepen-
dently and during meetings with his attorney.” Brief for appel-
lant at 17. Brooks urges us to reach a conclusion similar to that
of the California Supreme Court in Barber v. Municipal Court,
etc., 24 Cal. 3d 742, 598 P.2d 818, 157 Cal. Rptr. 658 (1979).
We decline to do so.
In Barber v. Municipal Court, etc., participants of a “sit-in”
near a nuclear power facility as a demonstration of opposition
to the use of nuclear power were charged with trespassing and
unlawful assembly. As it turned out, one of the codefendants
was actually an undercover police officer, who had become
intimately involved with the group and attended numerous
planning meetings. After the participants were arrested, attor-
neys arrived at the jail and conducted a confidential attorney-
client conference with the arrestees, including the undercover
officer. The undercover officer was present for the confidential
attorney-client conference with the defendants and testified that
he was sure defense strategy had been discussed, but that he
had not paid close attention.
At or around the time of the defendants’ arraignment, the
presiding judge and the prosecuting attorney were informed
that one of the defendants was an undercover officer, but
defense counsel was not informed. The undercover officer
continued to pose as a codefendant with the defendants and as
a client of defense counsel. He attended numerous confidential
attorney-client conferences that included detailed discussions
about the case and defense strategy. He participated in discus-
sion about the defense.
Throughout the pretrial proceedings, the undercover officer
reported to his superiors. His superiors testified that they could
not remember what information he had conveyed to them, but
that they were sure he had given them no information about
defense strategy.
At some point, approximately 2 months after the arrests,
the undercover officer’s identity as an undercover officer
was made known to defense counsel and to the defendants.
Evidence indicated that after this information was revealed,
Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 431
Cite as 22 Neb. App. 419the defendants became paranoid, distrustful of one another and
their counsel, and reluctant to actively participate in preparing
a defense.
The defendants filed a motion seeking to have the charges
dismissed. The trial court denied the motion on the ground
that there was no evidence any confidential information had
been transmitted to the prosecution, but ordered suppression
of any evidence gained from the undercover officer or derived
from his presence at any meetings between the defendants and
their counsel.
[9,10] On appeal, the California Supreme Court reversed.
Id. The court recognized that inherent in the Sixth Amendment
right to counsel is the assurance of confidentiality and privacy
of communication with counsel. Thus, the court held that the
right to counsel is violated “when a state agent is present at
confidential attorney-client conferences.” Barber v. Municipal
Court, etc., 24 Cal. App. 3d at 752, 598 P.2d at 823, 157 Cal.
Rptr. at 663.
The California Supreme Court, relying heavily on the evi-
dence of the impact on the relationship between the defendants
and their counsel of discovering the undercover officer’s true
identity, concluded that on the facts of that case, dismissal was
the only appropriate remedy. Id.The present case, however, is substantially distinguishable.
This case does not involve any situation where any representa-
tive of the State was “sitting in on” any conversations between
Brooks and counsel. The present case does not present a situa­
tion where any member of the prosecution or the investigat-
ing officers was privy to any discussions between Brooks and
his counsel or aware of any aspects of defense strategy. The
unrefuted evidence in this case is that once the materials were
confiscated, nobody associated with the State actually read or
reviewed any of the contents of the materials.
In this case, Brooks did not move for dismissal at the
trial level. Rather, he moved that “any evidence contained
in the police reports, . . . containing [Brooks’] protected
defense work product, be excluded from use against him at
trial.” Although it was not entirely clear what relief Brooks
was seeking at trial and the trial court expressed confusion
Decisions of the Nebraska Court of Appeals
432 22 NEBRASKA APPELLATE REPORTS
about the relief being sought, there was no request for dis-
missal of any charges. Brooks has not assigned as error the
district court’s denial of the relief he actually requested at
trial, suppression.
We are thus left with a situation where Brooks requested
a particular relief at trial, was denied that relief, and has not
assigned error to the denial of that relief, but where he asserts
on appeal that the district court erred in not granting other
relief that was never requested. The only way this assigned
error could be found to have merit would be on the basis of a
finding of plain error.
To the extent Brooks appears to have requested the trial
court to suppress the entire contents of all police reports in this
case because copies of them were confiscated from his cell—
confiscated on the basis that his possession thereof violated
Douglas County policies and disclosure agreements signed by
his counsel—we find no plain error in the district court’s denial
of the motion.
To the extent Brooks seeks to have us grant relief never
requested below, either in the form of dismissal of all charges
or in the form of a new trial, we similarly find no plain error
meriting such relief. The record in this case is clear that the
State did not look at any of the confiscated materials to deter-
mine any content therein, contrary to the undercover officer’s
continued participation and awareness of specific defense strat-
egies in Barber v. Municipal Court, etc., 24 Cal. 3d 742, 598
P.2d 818, 157 Cal. Rptr. 658 (1979). Moreover, although the
confiscated materials are presented as exhibits that together
appear to be at least 500 pages in length, our review of the
materials indicates that there is little to no information con-
tained therein that was added to the original reports by Brooks
or his counsel. Indeed, the most that can be said about the
confiscated reports appears to be that someone underlined
some portions of witness testimony on a handful of the police
reports and wrote the name of particular witnesses who are
mentioned in the reports at the top of a handful of pages. The
vast majority of the 500 or more pages contain absolutely no
markings whatsoever.
Decisions of the Nebraska Court of Appeals
STATE v. BROOKS 433
Cite as 22 Neb. App. 419The denial of the relief requested at trial has not been
appealed to us. The relief urged on appeal was not requested
at trial. We find no plain error and find this assigned error to
be meritless.
3. Assistance of Counsel
Finally, Brooks assigns as error that his “respective trial
counsels [sic] provided prejudicial ineffective assistance.” He
argues that “all of his trial counsels [sic]” provided ineffec-
tive assistance “at various points throughout the proceedings.”
Brief for appellant at 23. Brooks asserts that his trial attorneys
were ineffective in a variety of ways, including failing “to
independently interview, depose, or subpoena” a variety of wit-
nesses, and that Eustice was ineffective in advising Brooks to
speak with police without his presence on several occasions.
Id. at 25. We find that these assertions cannot properly be con-
sidered in this direct appeal.
[11] The test for ineffective assistance of counsel is well set-
tled. To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must show that his or
her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. State
v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
[12-14] On direct appeal, the resolution of ineffective assist­
ance of counsel claims turns upon the sufficiency of the record.
Id. 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 suffi-
cient to adequately review the question. Id. This is because the
trial record reviewed on appeal in a criminal case is devoted
to issues of guilt and innocence and does not usually address
issues of counsel’s performance. Id.[15-17] A defendant alleging that trial counsel was inef-
fective is required to specifically assign and argue his trial
counsel’s allegedly deficient conduct. Id. On direct appeal, an
appellate court can determine whether the record proves or
rebuts the merits of a claim of ineffective assistance of trial
Decisions of the Nebraska Court of Appeals
434 22 NEBRASKA APPELLATE REPORTS
counsel only if it has knowledge of the specific conduct alleged
to constitute deficient performance. Id. Specific allegations of
prejudice, however, are not required when the issue is raised on
direct appeal. Id.In this case, the record presented on direct appeal is not suf-
ficient for us to resolve Brooks’ assertions that his trial counsel
performed ineffectively. Although Brooks asserts that counsel
performed ineffectively in failing to independently interview,
depose, or subpoena a variety of witnesses, there is no record
presented to us to demonstrate that counsel actually did fail
to interview or depose any of the witnesses. Although Brooks
makes assertions in his brief about what the various witnesses
would have testified, there is obviously no record to support
his assertions or to indicate what any of the witnesses might
have testified.
Finally, although the record does indicate that Eustice
advised Brooks to speak with law enforcement without his
presence, the record has not been developed to fully indicate
Eustice’s motivations for such a decision, beyond his expec-
tation that Brooks would provide an exculpatory statement.
Moreover, it is not apparent from the record presented how
Eustice’s advice in this regard resulted in prejudice, inasmuch
as there was substantial evidence adduced to the trial court
concerning Brooks’ involvement in the homicide.
On the record presented on direct appeal, we cannot find
that Brooks’ trial counsel performed deficiently or that any
alleged deficient performance prejudiced Brooks’ defense.
At this time, the record is insufficient to further address
the merits of Brooks’ assertions about the effectiveness of
his counsel.
V. CONCLUSION
We find no merit to Brooks’ assertions on appeal. We affirm.
Affirmed.