State v. Sherrod , 27 Neb. Ct. App. 435 ( 2019 )

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STATE v. SHERROD
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State of Nebraska, appellee, v.
Jaquez S. Sherrod, appellant.
___ N.W.2d ___
Filed July 30, 2019. No. A-18-593.
1. 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.
2. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law
and fact.
3. ____: ____. When reviewing a claim of ineffective assistance of coun-
sel, an appellate court reviews the factual findings of the lower court for
clear error.
4. Controlled Substances. A person possesses a controlled substance
when he or she knows of the nature or character of the substance and of
its presence and has dominion or control over it.
5. Controlled Substances: Evidence: Circumstantial Evidence: Proof.
Possession can be either actual or constructive, and constructive pos-
session of an illegal substance may be proved by direct or circumstan-
tial evidence.
6. Controlled Substances. Mere presence at a place where a controlled
substance is found is not sufficient to show constructive possession.
7. Evidence. The holder of a key, be it to a dwelling, vehicle, or motel
room, has constructive possession of the contents therein.
8. Effectiveness of Counsel: Appeal and Error. When a defendant’s
trial counsel is different from his or her counsel on direct appeal, the
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defendant must raise on direct appeal any issue of trial counsel’s inef-
fective performance which is known to the defendant or is apparent
from the record. Otherwise, the issue will be procedurally barred.
9. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
10. Effectiveness of Counsel: Records: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record
is sufficient to adequately review the question.
11. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffec-
tive assistance of counsel claim is raised in a direct appeal, the appellant
is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
12. ____: ____: ____. General allegations that trial counsel performed defi-
ciently or that trial counsel was ineffective are insufficient to raise an
ineffective assistance claim on direct appeal and thereby preserve the
issue for later review.
13. Effectiveness of Counsel: Records: Appeal and Error. An ineffec-
tive assistance of counsel claim made on direct appeal can be found
to be without merit if the record establishes that trial counsel’s per-
formance was not deficient or that the appellant could not establish
prejudice.
14. Trial: Attorneys at Law. Trial counsel is afforded due deference to
formulate trial strategy and tactics.
15. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Abbi R. Romshek for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
R iedmann, A rterburn, and Welch, Judges.
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R iedmann, Judge.
INTRODUCTION
Jaquez S. Sherrod was convicted in the district court for
Douglas County of manufacturing, distributing, or possession
with intent to distribute 10 to 28 grams of crack cocaine with
a firearm and possession of a deadly weapon (firearm) by a
prohibited person. On appeal, he alleges that the evidence was
insufficient to support the convictions and that he received
ineffective assistance of counsel in four respects. We conclude
that the record on direct appeal is sufficient to address only
one of the ineffective assistance of counsel claims. We find the
evidence was sufficient to support the convictions and there-
fore affirm.
BACKGROUND
On September 26, 2017, Sherrod was charged with manu-
facturing, distributing, or possession with intent to distribute a
controlled substance (crack cocaine) with a firearm, a Class IC
felony, and possession of a deadly weapon (firearm) by a pro-
hibited person, a Class ID felony. At trial, the evidence revealed
that on September 13, the Omaha Police Department SWAT
team executed a “no-knock search warrant” at a residence
located on North 18th Street in Omaha, Nebraska. Sherrod was
the subject of the search warrant. The SWAT team broke down
the front door to the residence, looked inside, and observed
Sherrod at the opposite end of the residence. The SWAT team
then deployed a “flash bang” distraction device before enter-
ing the home. Sherrod and another male were located in an
upstairs bedroom.
The residence was searched, and officers located a set of
keys in the bedroom on the first floor. The keyring had two
keys on it. One was a key to a vehicle that was registered to
Sherrod and parked about a block away from the 18th Street
residence. The other key was described as an “older style skel-
eton key” and “a pretty antique or old looking key.” That key
fit into the lock on the door to the first floor bedroom.
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There was a closet and bathroom inside the first floor bed-
room. Officers found a “hollowed out” area on the top of the
doors to the closet and bathroom, and each hollowed-out area
held two plastic baggies containing crack cocaine. Officers
also found a baggie of crack cocaine on the floor in the kitchen
at the base of the stairs going upstairs. The parties stipulated
that each of the five baggies contained approximately 3 grams
of crack cocaine, and testing concluded that the substance was,
in fact, crack cocaine and that the total weight of all five bag-
gies combined was approximately 13.452 grams.
Using the key found in the first floor bedroom, officers
searched Sherrod’s vehicle and found sandwich baggies in the
center console. Inside the residence, police found digital scales
and glass plates with razor blades. When Sherrod was arrested
at the scene, he was carrying $833 in cash on his person in a
combination of bills no larger than a $20 bill.
An Omaha police officer with special training in the field of
narcotics testified that “street level” crack cocaine dealers sell
drugs for cash and commonly use weapons, such as firearms,
to protect their business. He explained that crack cocaine is
cut with a razor or knife and normally packaged in small sand-
wich baggies. A dose of crack cocaine is .2 grams, which sells
for $20. Thus, an amount between 10 and 15 grams of crack
cocaine is an amount consistent with distribution.
Officers also found a firearm in the dresser drawer in the
first floor bedroom. The parties stipulated that Sherrod was
prohibited from possessing a weapon because he had previ-
ously been convicted of a felony. Testing revealed that there
was DNA from at least three people on the firearm. A DNA
analyst explained that Sherrod could not be excluded as a
partial profile contributor to the DNA found on the firearm.
The probability of a random individual’s matching the partial
DNA profile within the mixture, given that Sherrod expresses
such a profile, is approximately 1 in 5.76 million. There
are currently approximately 1.9 million people in the State
of Nebraska.
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Although Sherrod could not be excluded as a contributor to
the DNA found on the firearm, the DNA analyst explained that
it is possible for DNA to be transferred onto an item that some-
one did not touch. For example, if someone owns a hammer
and shakes someone else’s hand and then touches their own
hammer, the DNA of the person whose hand they shook could
be transferred onto the hammer. Generally, however, the most
DNA found on the item touched would come from the person
who actually touched the item.
As a result of the execution of the search warrant and loca-
tion of the crack cocaine and firearm, Sherrod was arrested.
The following day, he made a telephone call from jail which
was recorded. In the call, he asked the male to whom he
was speaking if he had “been back to the house.” The recipi-
ent of the call said that he had, but that he did not want to
talk because he knew the call was being recorded. Sherrod
then asked whether he “check[ed] the door” when he went to
the house.
During its case in chief, the State made an oral motion in
limine because the defense had indicated a desire to inquire
into how Sherrod became the subject of the search warrant.
The State explained that Sherrod became the target for the
warrant because police had completed a controlled buy of
crack cocaine 2 days before executing the search warrant and
that the confidential informant had identified Sherrod as the
person who sold the drugs from the 18th Street residence.
The State indicated that it had not charged Sherrod with any
crimes related to the controlled buy because it did not want
to disclose the identity of the informant. The controlled buy
was audio and video recorded, and thus, in order to protect the
identity of the informant, the district court granted the motion
in limine except to the extent the video could be manipulated
to remove any identifying features of the informant.
During the defense’s case, several law enforcement officers
were recalled to the stand, and the defense elicited testimony as
to why Sherrod was named as a suspect in the search warrant,
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which led to an explanation of the controlled buy. The video
recording of the controlled buy was marked as an exhibit,
and Sherrod offered it into evidence. The State objected and
invoked its privilege under Neb. Rev. Stat. § 27-510 (Reissue
2016) to protect the identity of the informant. The court sus-
tained the objection.
The officers then testified that after the controlled buy
was completed, the informant provided them with a physi-
cal description of the person who sold the crack cocaine
and a “street name.” The police department keeps a file of
street names, and the only person in the file who matched
the street name provided by the informant is Sherrod. The
officers showed the informant a photograph of Sherrod, and
the informant identified him as the person who sold the drugs
during the controlled buy. The informant used in the controlled
buy has previously provided reliable information to police on
approximately 15 to 20 occasions.
The defense reoffered the video into evidence, and the
State objected or, in the alternative, requested that the video
be played for the jury without its audio. The court received
the video into evidence, and it was played for the jury with-
out audio.
The defense also called to testify the man who lived at the
18th Street residence. He testified that Sherrod is his friend,
but that Sherrod does not live at that residence, nor does he
have any clothing or property at the residence.
After the conclusion of trial and deliberation, the jury found
Sherrod guilty of both charges. Sherrod was sentenced to 7 to
9 years for the drug conviction and a concurrent term of 3 to
3 years and 1 day for the weapons conviction. Sherrod timely
appeals to this court.
ASSIGNMENTS OF ERROR
Sherrod assigns that (1) the evidence was insufficient to sus-
tain the convictions and (2) he received ineffective assistance
of counsel.
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STANDARD OF REVIEW
[1] 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).
[2,3] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. State v. Sundquist,
301 Neb. 1006, 921 N.W.2d 131 (2019). When reviewing a
claim of ineffective assistance of counsel, an appellate court
reviews the factual findings of the lower court for clear error.
Id. With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews
such legal determinations independently of the lower court’s
decision. State v. Sundquist, supra.
ANALYSIS
Sufficiency of Evidence.
Sherrod argues that the evidence was insufficient to sustain
his convictions. We disagree.
It is unlawful for any person to knowingly or intentionally
manufacture, distribute, or possess with intent to distribute a
controlled substance. Neb. Rev. Stat. § 28-416(1) (Cum. Supp.
2018). Any person who violates § 28-416(1) with respect to
crack cocaine in a quantity of at least 10 grams but less than
28 grams is guilty of a Class ID felony. § 28-416(8). The
penalty is enhanced for a person knowingly or intentionally
possessing a firearm while in violation of § 28-416(1), and
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thus, an offense under § 28-416(1) that would be a Class ID
felony without a firearm becomes a Class IC felony. See
§ 28-416(16).
Sherrod concedes that the amount of crack cocaine found
during the execution of the search warrant is consistent with
an amount used in distribution as opposed to a personal use
amount, and the parties stipulated at trial that the total amount
of crack cocaine found during the search was approximately
13.452 grams. Sherrod argues, however, that the evidence was
not sufficient to identify him as the person selling the drugs.
He claims that he did not live at the residence, and the only
evidence connecting him to the first floor bedroom was the
key that unlocked the bedroom door which was found on the
same keyring as the key to Sherrod’s vehicle.
[4,5] A person possesses a controlled substance when he or
she knows of the nature or character of the substance and of its
presence and has dominion or control over it. State v. Howard,
282 Neb. 352, 803 N.W.2d 450 (2011). Possession can be
either actual or constructive, and constructive possession of
an illegal substance may be proved by direct or circumstantial
evidence. Id.
[6] Because Sherrod was not found to be in actual posses-
sion of the crack cocaine, the question before us is whether
there is sufficient evidence from which a trier of fact could
reasonably infer that he was in constructive possession, i.e.,
that he was aware of the presence of the crack cocaine and had
dominion or control over it. See id. Mere presence at a place
where a controlled substance is found is not sufficient to show
constructive possession. Id. Instead, the evidence must show
facts and circumstances which affirmatively link Sherrod to the
crack cocaine so as to suggest that he knew of it and exercised
control over it. See id.
[7] In the present case, the majority of the crack cocaine
was found in the first floor bedroom where officers also found
a key to a vehicle registered to Sherrod on the same keyring
as a key that unlocked the door to the bedroom. The Eighth
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Circuit Court of Appeals has joined every other circuit in rul-
ing that the holder of a key, be it to a dwelling, vehicle, or
motel room in question, has constructive possession of the
contents therein. U.S. v. Timlick, 481 F.3d 1080 (8th Cir. 2007).
Thus, because Sherrod had a key to the first floor bedroom, a
reasonable jury could have inferred that he had dominion or
control over its contents. See id.
Additional circumstantial evidence supports the jury’s con-
clusion that Sherrod had constructive possession over the con-
tents of the first floor bedroom, including the crack cocaine.
There was DNA on the firearm found in the bedroom, and
Sherrod could not be excluded as a contributor to that DNA.
In a recorded telephone call made from jail, Sherrod asked
whether the recipient of the call had “been back to the
house” and whether he had “check[ed] the door.” This gives
rise to a reasonable inference that Sherrod knew there was
crack cocaine located in hollowed-out portions of doors in
the bedroom.
In addition, officers found small plastic baggies in a vehicle
registered to Sherrod, which are consistent with the packag-
ing for crack cocaine. And when Sherrod was arrested, he was
carrying a large amount of cash. Moreover, an informant had
purchased crack cocaine from a person at the residence 2 days
before the search warrant was executed and identified Sherrod
as the person who sold the drugs. We therefore find that the
evidence was sufficient for a reasonable jury to conclude that
Sherrod had constructive possession of the crack cocaine.
Sherrod raises a similar argument with respect to the fire-
arm. He argues that the evidence was insufficient to establish
that he possessed the firearm at the time he manufactured, dis-
tributed, or possessed with intent to distribute crack cocaine.
He notes that DNA from at least three different people was
found on the firearm, and he argues that his DNA could have
been transferred onto the firearm by someone else.
As we addressed above, the circumstantial evidence was
sufficient for the jury to find that Sherrod had dominion and
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control over the contents of the first floor bedroom, the loca-
tion where the firearm was found. In addition, Sherrod could
not be excluded as a contributor to DNA found on the firearm,
and the probability of an unrelated individual matching the
DNA profile was approximately 1 in 5.76 million. From this
evidence, the jury could conclude that Sherrod possessed the
firearm while manufacturing, distributing, or possessing with
intent to distribute crack cocaine.
Sherrod argues that his DNA could have been transferred
onto the firearm by someone who had handled an item that
Sherrod also handled. While this possibility exists according to
the DNA analyst, it is clear from the jury’s verdict that it did
not believe that is how Sherrod’s DNA got on the firearm. To
accept Sherrod’s argument would require us to reweigh the evi-
dence, which an appellate court cannot do on appeal. See State
v. McCurdy, 301 Neb. 343, 912 N.W.2d 292 (2018) (appellate
court does not resolve conflicts in evidence, pass on credibility
of witnesses, or reweigh evidence; such matters are for finder
of fact). Therefore, viewing the evidence in the light most
favorable to the prosecution, we conclude that the evidence
was sufficient for a rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt.
Sherrod was also convicted of possession of a deadly
weapon (firearm) by a prohibited person. As applicable here, a
person commits the offense of possession of a deadly weapon
by a prohibited person if he or she possesses a firearm and
has previously been convicted of a felony. See Neb. Rev. Stat.
§ 28-1206(1) (Cum. Supp. 2018). The parties stipulated at trial
that Sherrod was prohibited from possessing a weapon because
he had previously been convicted of a felony.
With respect to this offense, Sherrod raises the same argu-
ment as he raised for the drug offense: He argues that the evi-
dence was insufficient to prove that he possessed the firearm
found at the residence. We find no merit to this argument.
This court has extended the doctrine of constructive pos-
session to the crime of possession of a firearm by a felon
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under § 28-1206. See State v. Long, 8 Neb. Ct. App. 353, 594
N.W.2d 310 (1999). As stated above, constructive possession
means the possessor did not have actual possession but was
aware of the presence of the contraband and had dominion
or control over it. See State v. Howard, 282 Neb. 352, 803
N.W.2d 450 (2011).
We incorporate our analysis from above where we deter-
mined that the evidence was sufficient for the jury to conclude
that Sherrod had constructive possession of the firearm found
in the first floor bedroom. A key to the bedroom was found
alongside the key to a vehicle registered to Sherrod. DNA was
located on the firearm, and Sherrod could not be excluded as
a contributor to that DNA. As a result, the evidence was suf-
ficient to support the conviction for possession of a firearm by
a prohibited person.
Ineffective Assistance of Counsel.
[8] Sherrod is represented in this direct appeal by differ-
ent counsel than the counsel who represented him at the trial
level. 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 perform­
ance which is known to the defendant or is apparent from the
record. Otherwise the issue will be procedurally barred. State v.
Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
[9-12] 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. Sundquist, 301 Neb. 1006, 921 N.W.2d 131
(2019). A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal. The
determining factor is whether the record is sufficient to ade-
quately review the question. Id. When the claim is raised in a
direct appeal, the appellant is not required to allege prejudice;
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however, an appellant must make specific allegations of the
conduct that he or she claims constitutes deficient performance
by trial counsel. Id. General allegations that trial counsel per-
formed deficiently or that trial counsel was ineffective are
insufficient to raise an ineffective assistance claim on direct
appeal and thereby preserve the issue for later review. Id.
[13] Appellate courts have generally reached ineffective
assistance of counsel claims on direct appeal only in those
instances where it was clear from the record that such claims
were without merit, or in the rare case where trial counsel’s
error was so egregious and resulted in such a high level of
prejudice that no tactic or strategy could overcome the effect of
the error, which effect was a fundamentally unfair trial. Id. An
ineffective assistance of counsel claim made on direct appeal
can be found to be without merit if the record establishes that
trial counsel’s performance was not deficient or that the appel-
lant could not establish prejudice. Id.
Sherrod asserts that his trial counsel was ineffective in four
respects. First, he claims that trial counsel was ineffective in
failing to object to prejudicial and irrelevant evidence, includ-
ing evidence of prior bad acts. He specifically argues that trial
counsel should have objected to testimony that Sherrod was the
subject of the search warrant because such evidence allowed
the jury to infer that Sherrod had committed prior crimes. He
also contends that trial counsel’s performance was deficient
because he elicited evidence of the controlled buy and the
informant’s identification of Sherrod as the person who sold
the drugs.
[14,15] The decision whether or not to object has long been
held to be part of trial strategy. State v. Huston, 285 Neb. 11,
824 N.W.2d 724 (2013). When reviewing claims of alleged
ineffective assistance of counsel, trial counsel is afforded due
deference to formulate trial strategy and tactics. Id. There is
a strong presumption that counsel acted reasonably, and an
appellate court will not second-guess reasonable strategic deci-
sions. Id. Because of this deference, the question whether the
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failure to object was part of counsel’s trial strategy is essential
to a resolution of Sherrod’s ineffective assistance of counsel
claims. See id. There is no evidence in the record regarding
trial counsel’s trial strategy, including why he did not object
to testimony that Sherrod was the subject of the warrant or
why he elicited testimony regarding the controlled buy and
the informant’s identification of Sherrod. We therefore con-
clude that the record on direct appeal is insufficient to address
this claim.
Sherrod additionally asserts that trial counsel was ineffec-
tive in failing to elicit more specific testimony regarding the
skeleton key to the first floor bedroom. He claims that the
evidence is unclear as to whether the key was a traditional
skeleton key in the sense that it could be used to unlock many
different doors or whether the term was used to describe the
key simply because of its antique appearance. He alleges that
as a result of trial counsel’s deficient performance, the jury
was permitted to erroneously assume that the key, like most
keys, unlocked only the door to the first floor bedroom and
that thus, Sherrod resided or had control over the bedroom and
its contents.
The State argues that Sherrod is unable to show he was
prejudiced by counsel’s failure to elicit specific testimony
regarding the key, because the key opened the door to this
bedroom, and that given the other evidence, there is not a
reasonable probability the result of the proceeding would have
been different.
We find the record insufficient to address this claim. Because
trial counsel did not inquire into what the officer meant by the
term “skeleton key,” it was unclear for the jury exactly how
the key worked, other than the fact that it opened the bedroom
door. And if the key was, in fact, a traditional skeleton key
that opened multiple doors, that fact may have been relevant
to the jury. Because we do not know why trial counsel did not
elicit testimony regarding the key from the officer, the record
is insufficient to address this argument.
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Sherrod further asserts that trial counsel was ineffective
in failing to properly investigate defenses and advise him by
offering the video into evidence at trial without personally
reviewing it or reviewing it with Sherrod. He claims that if
counsel had reviewed the video prior to trial, he would have
realized that the video had no probative value and that offering
it into evidence at trial would open the door to evidence of his
prior bad acts.
The record makes clear that trial counsel had attempted to
get a copy of the video “since day one,” but the State, claiming
its privilege to protect the identity of the informant, would not
release a copy. Thus, the fact that trial counsel was unable to
review the video prior to trial was not for lack of trying. We
therefore interpret this claim as an argument that trial counsel
should not have offered the video into evidence without having
first reviewed it. Sherrod concedes that the record is insuf-
ficient to address this claim, and we agree. The record before
us does not contain any information as to why trial counsel
offered the video into evidence, a decision which was part of
counsel’s trial strategy. We are therefore unable to address this
claim on direct appeal.
Finally, Sherrod argues that trial counsel was ineffective in
failing to file a motion to suppress the evidence seized as a
result of the search of the 18th Street residence and Sherrod’s
vehicle. He asserts that there is no evidence the search occurred
with consent or was based on probable cause and that because
the search warrant is not part of the record, the record is insuf-
ficient to address this claim.
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. Ash, 293 Neb. 583,
878 N.W.2d 569 (2016).
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Sherrod asserts only that the record does not contain evi-
dence of consent or probable cause; he does not assert that
there was no consent or probable cause for the execution of the
search warrant. Furthermore, to the extent he contends prob-
able cause was lacking, he does not specify upon what facts
he bases that conclusion. We determine that he has not alleged
deficient performance with sufficient particularity, and there-
fore, this claim is not properly raised in this appeal. See id.
CONCLUSION
We conclude that the record before us is sufficient to address
only one of the ineffective assistance of counsel claims, and we
reject that claim. We additionally conclude that the evidence is
sufficient to support the convictions and therefore affirm.
A ffirmed.