State v. Lamberson ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/11/2018 08:10 AM CST
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STATE v. LAMBERSON
Cite as 26 Neb. Ct. App. 642
State of Nebraska, appellee, v.
Cody Lamberson, appellant.
___ N.W.2d ___
Filed December 4, 2018. No. A-17-857.
1. Trial: Convictions: Appeal and Error. An appellate court will sustain
a conviction in a bench trial of a criminal case if the properly admitted
evidence, viewed and construed most favorably to the State, is sufficient
to support that conviction.
2. Convictions: Evidence: Appeal and Error. When reviewing a criminal
conviction for sufficiency of the evidence to sustain the conviction, an
appellate court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, evaluate explanations, or reweigh the evidence
presented, which are within a fact finder’s province for disposition.
Instead, the relevant question 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 reason-
able doubt.
3. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her appellate counsel, all issues of inef-
fective assistance of trial counsel that are known to the defendant or are
apparent from the record must be raised on direct appeal. If the issues
are not raised, they are procedurally barred.
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. An appellate
court determines 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.
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5. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
6. Due Process: Convictions: Appeal and Error. Due process does not
require an appellate court, upon review of a criminal conviction, to take
the inference most favorable to the accused.
7. Convictions: Evidence: Appeal and Error. When reviewing a criminal
conviction, 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. This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testi-
mony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.
8. 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. Such a claim may be
resolved when the record on direct appeal is sufficient to either affirm­
atively prove or rebut the merits of the claim. The record is sufficient
if it establishes either that trial counsel’s performance was not defi-
cient, that the appellant will not be able to establish prejudice, or that
trial counsel’s actions could not be justified as a part of any plausible
trial strategy.
9. Effectiveness of Counsel: Proof. 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 per­
formance actually prejudiced the defendant’s defense.
10. Constitutional Law: Right to Counsel. The Sixth Amendment guaran-
tees a defendant the right to have counsel present at all critical stages
of the criminal proceedings. Interrogation by the State is one of those
critical stages.
11. Constitutional Law: Right to Counsel: Waiver. The Sixth Amendment
right to counsel may be waived by a defendant, so long as relinquish-
ment of the right is voluntary, knowing, and intelligent. Further, the
defendant may waive the right regardless of whether or not he is
already represented by counsel and the decision to waive need not itself
be counseled.
12. Effectiveness of Counsel. Defense counsel is not ineffective for failing
to raise an argument that has no merit.
13. Miranda Rights: Waiver. A Miranda waiver may be either express
or implied.
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14. ____: ____. An express waiver of a suspect’s Miranda rights may be in
writing or oral.
Appeal from the District Court for Sarpy County: Stefanie
A. M artinez, Judge. Affirmed.
Sean M. Reagan, of Reagan, Melton & Delaney, L.L.P., for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Pirtle, R iedmann, and Welch, Judges.
Welch, Judge.
INTRODUCTION
Cody Lamberson appeals his conviction for child entice-
ment. He contends that the evidence was insufficient to sup-
port his conviction and that his trial counsel was ineffec-
tive by withdrawing his motion to suppress, failing to renew
the motion during trial, and failing to adduce evidence in
Lamberson’s defense. Finding no merit to the arguments raised
by Lamberson on direct appeal, we affirm his conviction
and sentence.
STATEMENT OF FACTS
On March 25, 2016, the 15-year-old victim and her foster
sister were at an outlet mall in Gretna, Nebraska. Using her
cell phone and the outlet mall’s Wi-Fi, the victim was having a
conversation with her 24-year-old adopted brother Lamberson
via “Snapchat,” a social media messaging application. The
20-minute conversation consisted of the victim and Lamberson
asking each other how they were doing, because they had not
seen each other or otherwise communicated in about a year.
The victim testified at trial that she and Lamberson did not
talk about sex during their Snapchat conversation. Snapchat
messages disappear after a short period of time if they are
not saved. When the victim was leaving the outlet mall and
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would no longer have Wi-Fi available to continue the Snapchat
conversation with Lamberson, she asked him to send her text
messages instead of using Snapchat.
The following unedited conversation took place, via text
message, between the victim and Lamberson:
[Lamberson:] Would you really hook up with me?
8:49 PM
[The victim:] Idk your drink and I’m got little sister
8:49 PM
[Lamberson:] Its OK I know you wouldn’t  8:51 PM
[The victim:] I’m sorry. And you got a wife for that
8:51 PM
[Lamberson:] I know but I want u  8:53 PM
[The victim:] Why  8:53 PM
[The victim:] Text me bc I don’t have WiFi  8:55 PM
[Lamberson:] Your super hot and show you how good
it feels  8:56 PM
[The victim:] Ohhhhhhhhhhh  8:57 PM
[Lamberson:] Ya and I have been with another woman
in five years and really like you  9:08 PM
[Lamberson:] Haven’t been with  9:15 PM
[The victim:] Cody I’m your little sister  9:18 PM
[Lamberson:] I know it makes me want it a little more
but I’ll stop and not bring it up again I’m sorry  9:20 PM
[The victim:] You shouldn’t even been asking  9:21 PM
[Lamberson:] It was a joke  9:22 PM
[The victim:] Oh okaii sorry  9:22 PM
[The victim:] Goodnight love you  10:25 PM
[Lamberson:] KNIGHT love Ya too hun  10:26 PM
[The victim:] Talk to you tomorrow??  10:26 PM
[Lamberson:] Of course boo  10:27 PM
The victim showed the texts to her foster mother, who called
police. Lamberson was arrested and charged with child entice-
ment, a Class ID felony. See Neb. Rev. Stat. § 28-320.02
(Reissue 2016).
The trial in this matter was held on June 13, 2017. Although
several witnesses testified at trial, the majority of the State’s
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evidence was adduced through testimony from a Sarpy County
sheriff’s deputy, Darin Morrissey; through testimony from the
victim; through exhibit 1, an audio recording of Lamberson’s
interview with law enforcement; and through another exhibit
that contained screenshots of the text messages exchanged
between Lamberson and the victim.
Morrissey is a computer and cell phone forensic examiner
who investigates fraud and any cases involving computers and
cell phones, which includes child pornography, child entice-
ment, and some child abuse cases. On March 31, 2016, he was
assigned a child enticement case involving Lamberson and a
cell phone. On cross-examination, Morrissey testified that, dur-
ing the interview with Lamberson, he asked Lamberson about
the text that said, “Your super hot and show you how good
it feels.” That text concerned Morrissey because it alluded to
sexual contact; however, he admitted that there was nothing in
the text directly referencing sexual contact.
On redirect examination, Morrissey was asked:
Q. In dealing with child enticement cases, are you
familiar with the term “hook up”?
A. Yes.
....
[Defense counsel]: Objection. Foundation, hearsay.
THE COURT: Sustained.
[The State]: Judge, can I ask on which portion?
THE COURT: Foundation.
[The State]: Thank you.
Q. . . . Sir, in child enticement cases, are you — do you
have to be familiar with quote, unquote, lingo of people?
A. Yes.
Q. And what’s that mean?
At this point, defense counsel made another foundational
objection which was overruled by the district court. Morrissey
continued: “There are phrases for all different age groups that
I have to be familiar with. Many of the types of cases — child
enticement — are started over e-mails, text messages, appli-
cations which all deal with - . . . .” Defense counsel again
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objected that the witness was reciting a narrative and that the
answer was beyond the scope of the question. These objections
were overruled, and the witness resumed:
All over messaging conversations. So I’ve seen lots of
lingo, lots of phrases that — and know what they mean.
That’s just part of my job.
Q. . . . Is it part of your job, in dealing with child
enticement, sexual abuse, things of that nature, to know
slang?
A. Yes.
Q. Why is that important?
A. Because that’s how they communicate. Shortened
words, certain phrases mean certain things. They don’t
spell it all out.
Q. So in that regard, what does “hook up” mean?
Defense counsel posed a foundational objection based on hear-
say which was sustained by the court. The State argued that
the defense opened the door for Morrissey’s opinion “because
that’s what he was asking on cross-examination, his opinion
as to what these mean. So I think he’s allowed to give his
opinion to what that means if [defense counsel] already went
through that with him.” The court repeated that it was sustain-
ing the objection based upon foundation. The State continued
its questioning:
Q. . . . Have you ever used the term “hook up”?
A. Yes.
Q. Have you ever heard other people use the term
“hook up”?
A. Yes.
Q. What does it mean?
Defense counsel again posed a foundational objection which
was overruled. Morrissey stated, “It’s in relation to getting
together for sexual contact.”
Morrissey interviewed Lamberson on June 22, 2016, at the
Sarpy County jail. An audio recording of that interview was
received into evidence as exhibit 1. Morrissey was unaware
at the time he went to the interview that Lamberson had been
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appointed an attorney a few hours before the interview. He
became aware that Lamberson had been appointed an attorney
near the end of the interview.
The recording included a recitation by Morrissey of
Lamberson’s Miranda rights. After being advised of his
rights, Lamberson acknowledged that he understood his
rights. Although Morrissey did not ask Lamberson if he was
waiving his rights, Lamberson continued talking to Morrissey.
During the interview, Lamberson admitted to the text mes-
sage conversation with the victim but stated that it was “way
out of context from what I remember it being” and that it
was being “blown way out of proportion.” Lamberson told
Morrissey that when he asked, “Would you really hook up
with me?” in the text message, he did not mean “have sex
with”; rather, he meant “link up,” which he explained was a
meaning from his “military” background. He did not have an
explanation for some of the other texts such as “[y]our super
hot and show you how good it feels” and “I know it makes me
want it a little more but I’ll stop and not bring it up again[,]
I’m sorry.” He stated that he said that he had not been with
another woman in 5 years because he had “been with [his]
wife the whole time.” He stated that when he said, “[I] really
like you,” it was “cause she’s my little sister. Of course I’m
going to like her.” He further explained when he said, “It was
a joke,” there were missing texts where he called himself
“fat” and stated that the victim “wouldn’t want to hang out
with [him].”
The victim testified as to the facts previously set forth. She
also testified that she did not think Lamberson was joking
when he sent the text messages, that the text messages made
her feel “weird,” and that she was “creeped out” because
Lamberson was her adopted brother. The victim also testi-
fied that she showed the texts from Lamberson to her fos-
ter mother, because her foster mother would regularly look
through the victim’s cell phone and would have found out
and because she “didn’t want it to happen again.” The v­ ictim
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admitted that she did not feel threatened, intimidated, or
coerced by Lamberson.
The defense did not present any evidence. The court found
Lamberson guilty of the charged offense and sentenced him
to 3 to 4 years’ imprisonment with credit for 2 days served.
Lamberson has timely appealed to this court and is represented
by different counsel than represented him at trial.
ASSIGNMENTS OF ERROR
Lamberson contends that there was insufficient evidence to
support his conviction and that his trial counsel was ineffec-
tive by withdrawing his motion to suppress, failing to renew
the motion during trial, and failing to adduce certain evidence
in Lamberson’s defense.
STANDARD OF REVIEW
[1,2] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction. State v. Schuller, 287 Neb. 500,
843 N.W.2d 626 (2014). In making this determination, we do
not resolve conflicts in the evidence, pass on the credibility of
witnesses, evaluate explanations, or reweigh the evidence pre-
sented, which are within a fact finder’s province for disposi-
tion. Id. Instead, the relevant question 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. Id.
[3] When a defendant’s trial counsel is different from his
or her appellate counsel, all issues of ineffective assistance
of trial counsel that are known to the defendant or are appar-
ent from the record must be raised on direct appeal. State v.
McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018). If the issues
are not raised, they are procedurally barred. Id.
[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
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the claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102
(2018), disapproved on other grounds, State v. Avina-Murillo,
301 Neb. 185, 917 N.W.2d 865. An appellate court determines
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. An ineffective assistance
of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. State v. Hill, 298 Neb. 675,
905 N.W.2d 668 (2018).
ANALYSIS
Sufficiency of Evidence
Lamberson was tried and convicted of violating
§ 28-320.02(1). The State concedes in its brief on appeal that
the applicable portion of § 28-320.02(1) provides: “No person
shall knowingly solicit, coax, entice, or lure (a) a child sixteen
years of age or younger . . . by means of an electronic com-
munication device as that term is defined in section 28-833, to
engage in an act which would be in violation of section 28-319
. . . .” The applicable portion of Neb. Rev. Stat § 28-319(1)
(Reissue 2016) provides: “Any person who subjects another
person to sexual penetration . . . (c) when the actor is nineteen
years of age or older and the victim is at least twelve but less
than sixteen years of age is guilty of sexual assault in the first
degree.” Taken together, there would be sufficient evidence
to support Lamberson’s conviction for enticement if the com-
bined Snapchat and text communications with the 15-year-old
victim constituted a knowing solicitation, coaxing, enticement,
or luring of the victim to engage with him in an act involving
sexual penetration.
Lamberson does not challenge that he is 19 years of age
or older, that the victim was at least 12 years of age but
less than 16 years of age, or that the medium used for
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communication was an electronic device as defined by statute.
Instead, Lamberson argues that the substance of his communi-
cations with the victim did not amount to a knowing solicita-
tion, coaxing, enticement, or luring of the victim and that the
language used by him did not request the victim to engage
in an act involving sexual penetration. We will analyze these
arguments independently.
The Nebraska Supreme Court had occasion to interpret the
language of § 28-320.02(1) in State v. Knutson, 288 Neb. 823,
852 N.W.2d 307 (2014). In Knutson, the Supreme Court held:
As relevant here, the conduct prohibited by
§ 28-320.02(1) is using an electronic communication
device to knowingly “solicit, coax, entice, or lure” a child
16 years of age or younger “to engage in an act which
would be in violation of” § 28-319.01. The verbs in this
sentence all deal with the act of persuading—in this
context, persuading someone 16 years of age or younger
to perform a sexual act that is illegal under the speci-
fied statutes.
288 Neb. at 841, 852 N.W.2d at 322.
In the context of the case presently before this court, in
order to constitute a violation of § 28-320.02(1), the language
used by Lamberson in his Snapchat and text communications
must constitute knowing persuasion by him to have the victim
perform a sexual act involving penetration. “Sexual penetra-
tion” is defined by Nebraska statute as
sexual intercourse in its ordinary meaning, cunnilingus,
fellatio, anal intercourse, or any intrusion, however slight,
of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings
of the victim’s body which can be reasonably construed
as being for nonmedical or nonhealth purposes. Sexual
penetration shall not require emission of semen.
Neb. Rev. Stat. § 28-318(6) (Reissue 2016).
Applying our standard of review, after viewing the evi-
dence in the light most favorable to the State, we agree that a
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reasonable trier of fact could have found that Lamberson’s lan-
guage used in his electronic communications constituted lan-
guage of persuasion. The more difficult question here involves
the proposed act that Lamberson was attempting to persuade
the victim to perform.
In this case, Lamberson specifically requested the 15-year-
old victim to “hook up” with him. As stated before, in this
particular case, in order to be a violation of § 28-320.02(1), a
reasonable trier of fact needed to find that the term “hook up”
was a solicitation by Lamberson for the 15-year-old victim to
engage in an act involving sexual penetration. We acknowledge
that the term “hook up” can have multiple meanings; however,
we review the meaning of the term in the context of the other
evidence in this case.
In analyzing this matter, the primary evidence in this case
involved the language of the texts, the victim’s testimony,
Lamberson’s interview with police, and the testimony of com-
puter and cell phone forensic examiner Morrissey, who inves-
tigated cases of fraud involving computers and cell phones,
which includes child pornography, child enticements, and some
child abuse cases. When asked about the meaning of the term
“hook up,” Morrissey testified that it is a term commonly used
in connection with requested “sexual contact.” The issue in
this case is not whether Lamberson was attempting to per-
suade the victim to engage in an act involving any sexual
contact, but, rather, the issue here is whether Lamberson was
attempting to persuade the victim to engage in an act involving
sexual penetration.
We next note the remaining language of the text exchange.
In addition to asking the victim to “hook up,” Lamberson
attempted to explain that he had not “been with another woman
in five years” and that he wanted to show the victim “how good
it feels.” The victim responded to Lamberson that “you got a
wife for that” and otherwise resisted Lamberson’s advances,
including reminding him that she was his “little sister.”
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[6,7] Again, the issue here is whether any reasonable trier
of fact would have found that Lamberson used language which
demonstrates a knowing attempt to persuade the 15-year-old
victim to engage in a sexual act involving penetration. We note
that “[d]ue process does not require an appellate court, upon
review of a criminal conviction, to take the inference most
favorable to the accused.” State v. Pierce, 248 Neb. 536, 547,
537 N.W.2d 323, 330 (1995), citing Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). “When
reviewing a criminal conviction, 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.’” Id., quoting Jackson, supra.
“‘This familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.’” Id. at 548, 538 N.W.2d at 330,
quoting Jackson, supra.
Here, we conclude that a reasonable trier of fact could find
the language used by Lamberson in his texts constituted an
attempt to persuade the victim to engage in a sexual act involv-
ing penetration. Because we find that a reasonable trier of fact
could reach that conclusion, we reject his argument that the
evidence was insufficient to support his conviction.
Ineffective Assistance
of Counsel
Lamberson contends that his trial counsel was ineffective
by withdrawing his motion to suppress, failing to renew the
motion during trial, and failing to adduce certain evidence in
his defense.
[8] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it
can be resolved. State v. Wells, 300 Neb. 296, 912 N.W.2d
896 (2018). Such a claim may be resolved when the record on
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direct appeal is sufficient to either affirmatively prove or rebut
the merits of the claim. Id. The record is sufficient if it estab-
lishes either that trial counsel’s performance was not deficient,
that the appellant will not be able to establish prejudice, or that
trial counsel’s actions could not be justified as a part of any
plausible trial strategy. Id.
[9] To prevail on a claim of ineffective assistance of coun-
sel 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 defend­
ant’s defense. State v. McGuire, 299 Neb. 762, 910 N.W.2d
144 (2018).
Motion to Suppress
Lamberson first claims that trial counsel’s withdrawal of the
motion to suppress Lamberson’s statement to Morrissey and
failure to renew the motion during trial erroneously allowed
the court to hear Lamberson’s statement that was made “after
an attorney had been appointed, but without the attorney’s
knowledge or Lamberson being allowed to speak with [his]
attorney.” Brief for appellant at 21. The full statement was
admitted into evidence, and therefore, the record on appeal is
sufficient for us to review this claim.
[10] At the time of Lamberson’s custodial interrogation
by Morrissey, an attorney had been appointed to represent
Lamberson. Thus, we interpret Lamberson’s claim as refer-
encing a violation of his Sixth Amendment right to counsel.
“[T]he Sixth Amendment guarantees a defendant the right to
have counsel present at all ‘critical’ stages of the criminal pro-
ceedings.” Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct.
2079, 173 L. Ed. 2d 955 (2009). Interrogation by the State is
one of those critical stages. Id.
[11] Lamberson appears to argue that his rights were vio-
lated because Morrissey conducted a custodial interrogation
of Lamberson after an attorney had been appointed and did
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so without contacting the attorney prior to the interview or
allowing Lamberson to speak to him. Contrary to Lamberson’s
argument, the U.S. Supreme Court has rejected the position
that a defendant, who was represented by counsel, cannot
be approached by an investigator of the State and asked to
consent to interrogation. See id. Rather, the Court held that
“[w]hat matters for Miranda . . . is what happens when the
defendant is approached for interrogation, and (if he consents)
what happens during the interrogation—not what happened
at any preliminary hearing.” Montejo, 556 U.S. at 797. See
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966). The Court noted that the Sixth Amendment right
to counsel “may be waived by a defendant, so long as relin-
quishment of the right is voluntary, knowing, and intelligent.”
Montejo, 556 U.S. at 786. Further, the defendant may waive
the right regardless of whether or not he is already represented
by counsel and the decision to waive need not itself be coun-
seled. Id.
[W]hen a defendant is read his Miranda rights (which
include the right to have counsel present during interroga-
tion) and agrees to waive those rights, that typically does
the trick, even though the Miranda rights purportedly
have their source in the Fifth Amendment: “‘As a general
matter . . . an accused who is admonished with the warn-
ings prescribed by the Court in Miranda . . . has been
sufficiently apprised of the nature of his Sixth amend-
ment 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, 556 U.S. at 786-87 (emphasis in original). Thus, the
doctrine established by Miranda protects “the right to have
counsel present during custodial interrogation—which right
happens to be guaranteed (once the adversary judicial process
has begun) by two sources of law”—the Fifth Amendment and
the Sixth Amendment. Montejo, 556 U.S. at 795 (emphasis in
original). “Since the right under both sources is waived using
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the same procedure, . . . doctrines ensuring voluntariness of
the Fifth Amendment waiver simultaneously ensure the volun-
tariness of the Sixth Amendment waiver.” Montejo, 556 U.S.
at 795.
[12] Pursuant to the U.S. Supreme Court’s dictates in
Montejo, supra, even though an attorney had been appointed,
Morrissey had the right to request that Lamberson consent to
an interview so long as Lamberson was advised of his Miranda
rights and waived them. Lamberson’s claims to the contrary
are without merit, and his claim of ineffectiveness of counsel
on this basis must fail. Defense counsel is not ineffective for
failing to raise an argument that has no merit. State v. Burries,
297 Neb. 367, 900 N.W.2d 483 (2017).
Lamberson also claims that his statements and admissions
should have been challenged as being obtained in violation
of his Miranda rights, his rights under the Fifth and Sixth
Amendments to the U.S. Constitution, and his rights under
article I, §§ 3 and 12, of the Nebraska Constitution. The record
on appeal is likewise sufficient for us to review this claim.
Exhibit 1 consists of an audio recording of Morrissey’s
interview with Lamberson. At the beginning of the interview,
Morrissey read Lamberson his Miranda rights and Lamberson
stated that he understood them; however, he never expressly
waived his Miranda rights. A finding that Lamberson volun-
tarily waived his Miranda rights would result in the finding
that he waived his right to counsel under both the Fifth and
Sixth Amendments. See Montejo v. Louisiana, 556 U.S. 778,
129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009).
[13,14] Although Lamberson never specifically stated
that he waived his Miranda rights, this is not dispositive. A
Miranda waiver may be either express or implied. See State v.
Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). An express
waiver of a suspect’s Miranda rights may be in writing or
oral. See Hernandez, supra. In this case, there was no express
waiver of Miranda rights by Lamberson.
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A Miranda waiver may also be implied. See Hernandez,
supra. See, also, Berghuis v. Thompkins, 560 U.S. 370, 130 S.
Ct. 2250, 176 L. Ed. 2d 1098 (2010).
A “defendant’s silence, coupled with an understanding
of his rights and a course of conduct indicating waiver,”
may establish a valid, implied waiver. [North Carolina v.
Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d
286 (1979).] Thus, “[w]here the prosecution shows that a
Miranda warning was given and that it was understood by
the accused, an accused’s uncoerced statement establishes
an implied waiver of the right to remain silent. [Berghuis,
560 U.S. at 384.]
Hernandez, 299 Neb. at 919, 911 N.W.2d at 544.
The Nebraska Supreme Court considered a comparable fac-
tual situation in Hernandez, supra, where the defendant was
advised of his Miranda rights and indicated that he understood
them, but the issue remained regarding whether he knowingly
and voluntarily waived those rights. The court held that “by
voluntarily speaking with the investigators, [the defendant]
impliedly waived his rights.” Hernandez, 299 Neb. at 919, 911
N.W.2d at 544.
Similarly, in U.S. v. Umana, 750 F.3d 320 (4th Cir. 2014),
a defendant waived his Miranda rights when he stated that
he understood them and then talked to detectives. The Fourth
Circuit Court of Appeals stated:
“To effectuate a waiver of one’s Miranda rights, a sus-
pect need not utter any particular words.” . . . A suspect
impliedly waives his Miranda rights when he acknowl-
edges that he understands the Miranda warning and then
subsequently is willing to answer questions. . . . That is
precisely what happened in this case.
Umana, 750 F.3d at 344.
The factual situation presented to this court for determi-
nation does not differ in any significant respect. Morrissey
informed Lamberson of his Miranda rights, and Lamberson
expressly stated that he understood those rights. Lamberson
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went on to willingly engage in a dialogue with Morrissey in
which Lamberson both asked questions and answered ques-
tions. Lamberson’s actions constitute an implied waiver of his
Miranda rights. As such, Lamberson’s counsel was not inef-
fective for failing to challenge that Lamberson’s statements
and admissions were obtained in violation of his Miranda
rights, his rights under the Fifth and Sixth Amendments to
the U.S. Constitution, and his rights under article I, §§ 3 and
12, of the Nebraska Constitution. As we mentioned before,
defense counsel is not ineffective for failing to raise an argu-
ment that has no merit. State v. Burries, 297 Neb. 367, 900
N.W.2d 483 (2017). Thus, we reject Lamberson’s claims that
his trial counsel was ineffective by withdrawing his motion
to suppress, failing to renew the motion during trial, and
failing to challenge his statements and admissions as being
obtained in violation of his Miranda rights, his rights under
the Fifth and Sixth Amendments to the U.S. Constitution,
and his rights under article I, §§ 3 and 12, of the Nebraska
Constitution.
Failure to A dduce Evidence in
Lamberson’s Defense
Lamberson further contends that his trial counsel was inef-
fective for failing to adduce evidence in Lamberson’s defense.
Specifically, he contends that trial counsel failed to adduce
any evidence to dispute Morrissey’s testimony regarding the
definition of the term “hook up,” failed to “request the ability
to re-cross . . . Morrissey” regarding his testimony or to call
Morrissey as a witness, and failed to present any evidence to
refute Morrissey’s testimony. Brief for appellant at 22.
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. State v. Hill, 298
Neb. 675, 905 N.W.2d 668 (2018). An ineffective assistance
of counsel claim will not be addressed on direct appeal if it
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requires an evidentiary hearing. Id. The record before this court
is insufficient to address this allegation on direct appeal.
CONCLUSION
Having found that the evidence was sufficient to support
Lamberson’s conviction, we affirm his conviction and sentence.
We find that the record is sufficient to review Lamberson’s
claim that his trial counsel was ineffective by withdrawing
his motion to suppress and failing to renew the motion during
trial, which allowed the court to hear Lamberson’s statement
to Morrissey after an attorney had been appointed, but without
the attorney’s knowledge or Lamberson’s being allowed to
speak with his attorney, and we find that this claim is without
merit. Likewise, the record is sufficient to review Lamberson’s
claim that his trial counsel was ineffective by failing to chal-
lenge his statements and admissions as being obtained in
violation of his Miranda rights, his rights under the Fifth and
Sixth Amendments to the U.S. Constitution, and his rights
under article I, §§ 3 and 12, of the Nebraska Constitution, and
we find that this claim is without merit. The record before this
court is not sufficient to address Lamberson’s claim that his
trial counsel was ineffective for failing to adduce any evidence
in his defense to dispute Morrissey’s testimony regarding the
definition of the term “hook up,” failing to request the ability
to re-cross-examine Morrissey regarding his testimony or call
Morrissey as a witness, and failing to present any evidence to
refute Morrissey’s testimony.
A ffirmed.