State v. Freeman ( 2024 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. FREEMAN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
MITCHELL M. FREEMAN, APPELLANT.
Filed January 9, 2024. No. A-22-738.
Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge.
Affirmed.
Carlos A. Monzon, of Monzon, Guerra & Chipman, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.
RIEDMANN, ARTERBURN, and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Following a jury trial, Mitchell M. Freeman was convicted of terroristic threats, possession
of a firearm by a prohibited person, and use of a firearm to commit a felony. He has appealed,
assigning as error that the district court erred in denying his Franks motion and that he received
ineffective assistance of trial counsel. For the reasons stated herein, we affirm.
II. STATEMENT OF FACTS
1. BACKGROUND
In September 2020, the State filed an information, which was later amended, charging
Freeman with terroristic threats, possession of a firearm by a prohibited person, and use of a
firearm to commit a felony. The State also added habitual criminal allegations to the information.
Freeman’s convictions stem from incidents occurring in January and February 2020.
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(a) January 2020 Incident
The first incident occurred on January 19, 2020. On that date, after receiving information
regarding a weapons violation, Lincoln police officers contacted Shaneika Dancy Jones, who
reported that she was carrying groceries from her car into her mother’s house when she was
approached by a man wearing a hoodie with an attached face mask. As he got closer, the man
pulled down his hoodie and face mask, pointed a gun at her, and said “you know I could a’ just
did you in right there.” Jones stated that she recognized Freeman’s face and voice during the
encounter. The encounter ended when Freeman fled the scene.
Jones reported that she first met Freeman in 2018 or 2019 when she got a tattoo from
Freeman, who was a tattoo artist. She testified they dated briefly but kept in touch and would
occasionally communicate through Facebook Messenger. Jones testified that, although she
eventually blocked Freeman from messaging her, he created alternate accounts to contact her.
After efforts to locate Freeman were unsuccessful, officers obtained an arrest warrant for him.
(b) February 2020 Incident
On February 6, 2020, law enforcement received information that Freeman was staying at a
specific apartment in Lincoln, Nebraska. Officers attempted to arrest Freeman when he exited the
apartment building, but Freeman fled. A chase ensued, and during the pursuit, Senior Officer Chad
Barrett witnessed Freeman reach toward his waistband, pull out a handgun, and toss the gun to the
left just before entering the apartment complex’s courtyard area. Investigators Cole Jennings and
Daniel Dufek eventually tackled Freeman and handcuffed him. Barrett located the gun on a slab
of cement to the left of the courtyard area. Although none of the officers were wearing body
cameras, Barrett was able to recover surveillance video capturing Freeman’s arrest from a nearby
recreational center.
Following Freeman’s arrest, officers interviewed Freeman and obtained a DNA sample
from him. A DNA test of the handgun was performed. The DNA profile on the gun contained an
83/17 percent mixture of two individuals. Freeman’s DNA profile was identified as the 83 percent
contributor and was found to be 11.9 trillion more times likely to have come from Freeman and an
unknown individual than to have come from two unknown individuals.
2. MOTION TO SUPPRESS AND REQUEST FOR FRANKS HEARING
In February 2020, officers sought and obtained a search warrant for two Facebook accounts
associated with Freeman. During the search of the accounts, officers located Facebook messages
exchanged between Freeman and Jones which showed that prior to the January 2020 incident,
Freeman messaged Jones inquiring whether she was still living in the same place. Jones responded
by telling Freeman to leave her alone and stay away from her house or she would file a report.
Following the incident, Freeman messaged Jones again after Jones publicly posted about Freeman
pointing a gun at her. In that exchange, Freeman indicated that he was not in Nebraska at the time
of the incident and accused Jones of making up the incident.
Prior to trial, Freeman filed a motion for a Franks hearing regarding the affidavit submitted
in support of the warrant to search his Facebook accounts. Freeman alleged that the affidavit
erroneously stated he had been convicted of first degree murder; that the false statement was made
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knowingly and intentionally or with reckless disregard for the truth; that the statement was material
to the court’s determination of probable cause; and that the statement was so prejudicial in nature
it would be impossible for a court to separate the statement from the remainder of the facts alleged
in the affidavit.
In denying Freeman’s request for a Franks hearing, the court found that, although the
aforementioned statement regarding Freeman’s first degree murder conviction was false, the
statement was not made knowingly or intentionally. However, the court found that the statement
was made in reckless disregard of the truth, because the information reviewed by the officer
contained an “obvious reason . . . [for the officer] to have serious doubts” concerning the veracity
of Freeman’s alleged first degree murder conviction and the officer’s “failure to see and appreciate
what was directly before him connotes a reckless state of mind.” After excising the false statement
and re-examining the affidavit, the district court stated:
After examining the four corners of the warrant without the offending language, the
court finds probable cause existed to issue the warrant and authorize [a] search of
[Freeman’s] Facebook account. The false information about the first-degree murder
conviction added nothing to the probable cause analysis. The affidavit is replete with
allegations that the officers were searching for social media communications between
[Freeman] and three women who had made reports against him involving assaults and
terroristic threats, two incidents of which reportedly also involved [Freeman] possessing a
firearm.
....
Excising and setting aside the untrue statement that [Freeman] had been convicted
of first-degree murder, the warrant would still have been properly issued as there was
probable cause, and the evidence would be pertinent as described more fully in the
application. [Freeman] is therefore not entitled to a Franks hearing.
In addition to the aforementioned request for a Franks hearing, Freeman also filed a motion
to suppress the search of his Facebook accounts. His motion to suppress alleged that the search
warrant was invalid because the affidavit used in support thereof did not provide probable cause,
was overly broad, and contained material falsehoods including that Freeman had previously been
convicted of first degree murder. The district court denied this motion.
3. JURY TRIAL
A jury trial was held over 5 days in July 2022. Testimony was adduced from Jones and
numerous officers and investigators. Testimony was adduced consistent with the facts as set forth
above.
Freeman testified on his own behalf on July 14, 2022, but was unable to conclude his
testimony on that date. The trial was adjourned and Freeman was to continue his testimony the
following day. However, the following day, instead of testifying, Freeman informed the court that
he was done testifying and that he wanted to return to Tecumseh due to the conditions at the
Lancaster County Jail where he was being held during the trial. After finding that Freeman
voluntarily, knowingly, and freely waived his right to testify and be present for the remainder of
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the trial, the State requested that Freeman’s testimony be stricken from the record and that the jury
be instructed that Freeman’s previous testimony could not be considered. The court granted the
State’s motion.
4. REQUEST FOR COMPETENCY EVALUATION
On that same date, Freeman’s counsel made an oral motion for a competency evaluation
of Freeman due to conditions in the county jail. Freeman’s counsel further objected to the court’s
finding that Freeman’s waiver of his right to testify and be present for the remainder of the trial
was voluntary. After a discussion about the specific conditions at the jail that Freeman
experienced, the district court found that Freeman was competent to stand trial and overruled the
motion for a competency evaluation. Defense counsel moved for a mistrial which was denied by
the district court.
5. VERDICT
Following the trial, the jury found Freeman guilty on all three charges. Following an
enhancement hearing, the court found that Freeman was a habitual criminal. The court sentenced
Freeman to 10 to 12 years’ imprisonment for terroristic threats, 10 to 12 years’ imprisonment for
possession of a firearm by a prohibited person, and 10 to 14 years’ imprisonment for use of a
firearm to commit a felony. The sentences for terroristic threats and possession of a firearm were
ordered to run concurrently with each other but consecutive to the sentence imposed for use of a
firearm to commit a felony, resulting in an aggregate sentence of 20 to 26 years’ imprisonment.
Freeman now appeals from his convictions.
III. ASSIGNMENTS OF ERROR
Freeman’s assignments of error, restated, are that the district court erred in: (1) denying his
Franks motion without an evidentiary hearing; and (2) failing to find that trial counsel was
ineffective in failing to (a) investigate and present evidence at trial of his alibi defense; (b) present
all of the impeachment evidence that Jones had three, not two, prior convictions for providing false
information to law enforcement; and (c) conduct a contemporaneous investigation of whether
Freeman was competent to discontinue his testimony due to jail conditions and counsel’s failure
to file a timely motion for a new trial pursuant to Neb. Rev. Stat. § 29-2101 (1), (2), or (3) (Reissue
2016).
We note that Freeman argues, but does not separately assign as error, that his trial counsel
was ineffective for failing to object to the State’s questioning and statements during closing
arguments that Jones’ convictions for providing false information concerned traffic matters.
However, an alleged error must be both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appellate court, and assignments of error on
direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient
performance, and an appellate court will not scour the remainder of the brief in search of such
specificity. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Accordingly, we will not consider
this argument on appeal.
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IV. STANDARD OF REVIEW
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Drake,
311 Neb. 219, 971 N.W.2d 759 (2022). Regarding historical facts, an appellate court reviews the
trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court’s
determination. Id.We review the trial court’s findings as to whether the affidavit supporting the warrant
contained falsehoods or omissions and whether those were made intentionally or with reckless
disregard for the truth for clear error. State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021). We
review de novo the determination that any alleged falsehoods or omissions were not necessary to
the probable cause finding. Id.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. State v. Drake, supra. In reviewing claims of ineffective
assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts
contained within the record are sufficient to conclusively determine whether counsel did or did not
provide effective assistance and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance. Id.V. ANALYSIS
1. DENIAL OF FRANKS MOTION WITHOUT EVIDENTIARY HEARING
Freeman first assigns that the district court erred in failing to hold an evidentiary hearing
on his Franks motion and then failing to suppress the evidence obtained from his Facebook page.
He argues that the affidavit supporting law enforcement’s request for a search warrant contained
material falsities and omissions. More specifically, he argues that the affidavit contained a
knowingly false statement that Freeman had been convicted of first degree murder, which
improperly tainted the request for a search warrant.
In State v. Short, 310 Neb. at 124-26, 964 N.W.2d at 307-08, the Nebraska Supreme Court
stated:
In Franks v. Delaware [438 U.S. 154 (1978)], the U.S. Supreme Court explained,
“‘[W]hen the Fourth Amendment demands a factual showing sufficient to comprise
“probable cause,” the obvious assumption is that there will be a truthful showing.’” The
Court clarified this “does not mean ‘truthful’ in the sense that every fact recited in the
warrant affidavit is necessarily correct.” Rather, it recognized probable cause may be
founded upon hearsay as well as “upon information within the affiant’s own knowledge
that sometimes must be garnered hastily.” It concluded that “surely it is to be ‘truthful’ in
the sense that the information put forth is believed or appropriately accepted by the affiant
as true.”
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In contrast, it would be “unthinkable” to allow a warrant to stand beyond
impeachment if it were revealed after the fact to contain a “deliberately or reckless false
statement.” Thus, while there is a presumption of validity with respect to the affidavit
supporting the search warrant, that presumption may be overcome and a search warrant
may be invalidated if the defendant proves the affiant officer “‘knowingly and
intentionally, or with reckless disregard for the truth,’” included in the affidavit false or
misleading statements that were necessary, or “material,” to establishing probable cause.
Courts have extended the Franks rationale to omissions in warrant affidavits of
material information. Omissions in an affidavit used to obtain a search warrant are
considered to be misleading when the facts contained in the omitted material tend to
weaken or damage the inferences which can logically be drawn from the facts as stated in
the affidavit.
If the defendant successfully proves, by a preponderance of the evidence, that the
police knowingly and intentionally, or with reckless disregard for the truth, included a false
or misleading statement or omitted information material to a probable cause finding, then
the court examines whether the evidence obtained from the warrant and search was fruit of
the poisonous tree. In an “‘excise and re-examine’ corollary to the independent source
rule,” the trial court reexamines the affidavit after deleting the false or misleading statement
and including the omitted information, and it determines whether, viewed under the totality
of the circumstances, it still establishes probable cause. If it does not, then Franks requires
that the search warrant be voided and the fruits of the search excluded.
Mere negligence in preparing the affidavit will not lead to suppression, as the
purpose of the exclusionary rule is to deter misconduct. We review the trial court’s findings
as to whether the affidavit supporting the warrant contained falsehoods or omissions and
whether those were made intentionally or with reckless disregard for the truth for clear
error. We review de novo the determination that any alleged falsehoods or omissions were
not necessary to the probable cause finding.
No hearing is required if, when the material which is the subject of the alleged falsity or reckless
disregard is set aside, there remains sufficient content in the warrant affidavit to support a finding
of probable cause. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579 (2004).
Here, the district court found that although the statement that Freeman had previously been
convicted of first degree murder was false, Officer Dufek did not make the false statement
knowingly or intentionally. However, the court found that there was an “obvious reason on the
very paper he examined to have serious doubts about the conclusion he reached” and found that
Officer Dufek’s “failure to see and appreciate what was directly before him connotes a reckless
state of mind in then making the assertion, which the court does so find.” After excising the false
statement and reexamining the affidavit, the district court determined that, even without the
offending language, probable cause existed to authorize the search of Freeman’s Facebook
account. The court noted that the false information regarding Freeman’s alleged first degree
murder conviction did not add anything to the court’s probable cause analysis. Further, the
affidavit contained numerous allegations that law enforcement was searching for social media
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communications between Freeman and the three women who had reported him for assaults and
terroristic threats of which two incidents involved Freeman’s possession of a firearm.
Based on our review of the record, the affidavit in support of the search warrant contained
details of the following: three separate, recent incidents involving three different victims in which
Freeman either physically assaulted, or pointed a handgun at, the victims; Freeman’s flight from
officers as they attempted to execute an arrest warrant during which Freeman tossed his handgun
before being tackled to the ground and placed in custody; an interview with Freeman after his
arrest wherein he admitted to having Facebook Messenger conversations with two of the victims
and admitted that one conversation with Jones involved a discussion of the incident where Freeman
pointed a gun at her; and law enforcement’s discovery of two of Freeman’s Facebook accounts,
which contained recent “open source” postings and updates demonstrating recent activity as well
as photographs matching Freeman’s jail booking photos and jail photos of his tattoos.
Based on our review of the affidavit, assuming without deciding that the erroneous
statement regarding Freeman having been previously convicted of first degree murder was made
with reckless disregard for its truth, we agree with the district court that after excising that
language, the affidavit still contained sufficient factual allegations providing probable cause to
support issuance of the search warrant. When reviewing the totality of the circumstances, the
allegations of the recent incidents of assault and threats with a handgun, which gun was later found
when Freeman tossed it while fleeing from police, along with Freeman’s acknowledgments that
he used Facebook to communicate with Jones, provided probable cause to search his Facebook
accounts. We also note that Freeman does not address the impact of excising the erroneous
statement in his brief.
In sum, because Freeman cannot show that the erroneous statement regarding a prior
conviction for first degree murder was necessary or material to establishing probable cause, and
that probable cause still existed even after excising that statement from the affidavit, an evidentiary
hearing was not required. Because the affidavit, when excised of the erroneous statement,
supported a finding of probable cause to issue the warrant, and the subsequent search of Freeman’s
Facebook account was executed under a valid search warrant, the district court did not err in
refusing to suppress the evidence seized during the search. This assignment of error fails.
2. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Freeman next assigns that he received ineffective assistance of counsel during trial when
his counsel failed to: (a) investigate and present evidence at trial of Freeman’s alibi that he was
not in Nebraska at the time of the January 2020 offenses; (b) present all of the impeachment
evidence, i.e., that Jones had three, not two, prior convictions for providing false information to
law enforcement; and (c) conduct a contemporaneous investigation of whether Freeman was
competent to discontinue his testimony due to the jail conditions and failed to file a timely motion
for a new trial pursuant to § 29-2101 (1), (2), or (3).
In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective assistance and whether the defendant
was or was not prejudiced by counsel’s alleged deficient performance. State v. Wheeler, 314 Neb.
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282, 989 N.W.2d 728 (2023). The record is sufficient to resolve on direct appeal a claim of
ineffective assistance of counsel if the record affirmatively proves or rebuts either deficiency or
prejudice with respect to the defendant’s claims. Id.To show that counsel’s performance was deficient, the defendant must show counsel’s
performance did not equal that of a lawyer with ordinary training and skill in criminal law. Id. To
show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id.(a) Investigate and Present Evidence of Alibi
Freeman argues that although trial counsel filed a notice of alibi and questioned Freeman
regarding his location at the time of the offenses, counsel should have investigated whether cell
tower data, internet connections, other social media platforms, or video surveillance at a gas
station, bar, or Walmart existed to show that he was in Texas at the time of the alleged January
2020 offenses of terroristic threats and possession of a firearm by a prohibited person.
In March 2022, Freeman’s counsel filed a notice of his intent to present an alibi defense at
trial. However, the record is devoid of evidence as to whether counsel investigated or obtained any
records which would indicate that Freeman was not in Nebraska during the time of the alleged
January 2020 incident. Further, there is nothing in the record to explain why counsel chose not to
introduce those records if they did in fact exist. As such, we lack the record to determine this issue
on direct appeal and the allegation is preserved for postconviction purposes. See, State v. Figures,
308 Neb. 801, 957 N.W.2d 161 (2021); State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
(b) Impeachment of Jones
Freeman next assigns and argues that trial counsel was ineffective in failing to present
impeachment evidence of Jones’ 2012 conviction for providing false information to law
enforcement. Freeman argues that, following Jones’ conviction, on June 21, 2012, she was
sentenced to pay a $200 fine. Freeman contends that because Jones did not pay the fine until
August 20, 2012, the conviction was still subject to impeachment at the time of her trial testimony
on July 12, 2022.
Neb. Rev. Stat. § 27-609 (Reissue 2016) provides in relevant part:
(1) For the purpose of attacking the credibility of a witness, evidence that he has
been convicted of a crime shall be admitted if elicited from him or established by public
record during cross-examination, but only if the crime (a) was punishable by death or
imprisonment in excess of one year under the law under which he was convicted or (b)
involved dishonesty or false statement regardless of the punishment.
(2) Evidence of a conviction under this rule is not admissible if a period of more
than ten years has elapsed since the date of such conviction or of the release of the witness
from confinement, whichever is the later date.
(Emphasis supplied.)
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At the time of Jones’ trial testimony on July 12, 2022, more than 10 years had passed since
Jones’ conviction on June 21, 2012. Jones was not sentenced to confinement and Freeman does
not point to any authority which would otherwise extend the 10-year rule. It is well-settled that
“counsel’s failure to raise novel legal theories or arguments or to make novel constitutional
challenges in order to bring a change in existing law does not constitute deficient performance.”
State v. Kipple, 310 Neb. 654, 667, 968 N.W.2d 613, 625 (2022). Freeman’s counsel cannot be
deficient for failing to elicit evidence of Jones’ third conviction. This assignment of error fails.
(c) Investigation Into Competency to Discontinue Testimony
Finally, Freeman assigns that his trial counsel was ineffective in failing to conduct a
contemporaneous or prompt investigation into whether Freeman was competent to discontinue his
testimony because of jail conditions and then failing to file a motion for a new trial pursuant to
§ 29-2101(1), (2), or (3) based on the evidence. Freeman asserts that his counsel moved for a
competency examination when Freeman was called back to resume his testimony. Freeman argues
that he informed counsel that he was being mistreated, was placed in a suicide cell, could not sleep,
and was in his own feces, but that his counsel did not present this information to the district court
during trial or in a timely motion for a new trial. We find that Freeman’s claim is refuted by the
record.
In order to demonstrate prejudice from counsel’s failure to investigate competency and for
failing to seek a competency hearing, the defendant must demonstrate that there is a reasonable
probability that he or she was, in fact, incompetent and that the trial court would have found him
or her incompetent had a competency hearing been conducted. State v. Hessler, 295 Neb. 70, 886
N.W.2d 280 (2016). A person is competent to plead or stand trial if he or she has the capacity to
understand the nature and object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a rational defense. Id. The
competency standard includes both (1) whether the defendant has a rational as well as factual
understanding of the proceedings against him or her and (2) whether the defendant has sufficient
present ability to consult with his or her lawyer with a reasonable degree of rational understanding.
State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023). There are no fixed or immutable signs of
incompetence, and a defendant can meet the modest aim of legal competency, despite paranoia,
emotional disorders, unstable mental conditions, and suicidal tendencies. Id.Here, after counsel informed the court during the trial that Freeman did not want to continue
testifying due to the conditions at the jail, the court accepted Freeman’s voluntary waivers of his
right to testify and to be present for the remainder of the trial. Trial counsel then requested that
Freeman be given the opportunity to describe his experiences in the jail as it related to the
voluntariness of his waiver. Freeman’s counsel indicated that she had concerns related to
Freeman’s mental state and that, but for the jail conditions, Freeman would not be in his current
mental state.
After objecting to the court’s finding that Freeman freely, voluntarily, and knowingly
waived his right to testify, the court afforded Freeman the opportunity to address the jail conditions
that he had experienced. Freeman stated that he had not slept; he was placed in a suicide cell
dressed solely in his boxers; he was not fed; he was not provided with toilet paper, had to use a
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little hole in the floor to go to the bathroom, had to use the smock he was wearing to wipe himself,
and had to scoop what missed the hole with his hands; he became upset and threw some of his
feces; he had to sleep in the room all night covered in his own feces; he was only able to shower
an hour and a half prior to returning to court; he felt that the county jail was punishing him; and
he wanted to return to Tecumseh where “they treat you with some type of dignity.”
Thereafter, Freeman’s counsel made an oral motion with regard to a competency evaluation
which the district court denied. Counsel then moved for a mistrial which the court also denied,
finding that “[Freeman] cannot cause his own mistrial” and “there’s no question that [Freeman]
appears competent to the Court at this time.” Further, the court found that Freeman chose not to
participate in the remainder of the trial and that the court was not preventing Freeman from
participating in the trial, but rather it was Freeman’s decision not to participate.
Freeman’s specific assignment here is that his counsel was ineffective for failing to
investigate his competency following Freeman’s disclosures to the court governing his treatment
at the jail the previous night and then failing to file a motion for a new trial. However, the record
discloses that once Freeman described the jail conditions that he experienced, counsel did move
for a competency hearing, but the court overruled this request and proceeded with trial.
As the Nebraska Supreme Court noted in State v. Vo, 279 Neb. 964, 783 N.W.2d 416(2010), a competency determination is necessary only when a court has reason to doubt the
defendant’s competence. The trigger for a competency hearing under Nebraska law has been set
forth as follows:
If at any time while criminal proceedings are pending facts are brought to the attention of
the court, either from its own observation or from suggestion of counsel, which raise a
doubt as to the sanity of the defendant, the question should be settled before further steps
are taken. However, although a hearing on the issue is sometimes said to be obligatory, if
a reasonable doubt is raised, the doubt referred to is a doubt arising in the mind of the trial
judge, as distinguished from uncertainty in the mind of any other person.
State v. Cortez, 191 Neb. 800, 802, 218 N.W.2d 217, 219 (1974).
Here, once Freeman relayed his concerns governing his treatment at the jail the previous
night, all such conditions were brought to the court’s attention. And, although Freeman’s counsel
requested a competency hearing, the court had the opportunity to observe Freeman at that time and
throughout the proceedings prior to denying the request. Freeman does not separately assign error
to the district court’s ruling that he was competent, nor does he argue how or why his counsel was
ineffective for failing to file a motion for new trial under these circumstances.
Because trial counsel brought the issue of Freeman’s competency to the court’s attention
and requested a competency hearing after which Freeman was able to describe his concerns to the
court, we find that the record affirmatively refutes this assignment. This claim fails and the issue
is not preserved for postconviction proceedings.
VI. CONCLUSION
In sum, we considered and rejected Freeman’s assigned errors with the exception of his
claim that trial counsel was ineffective in failing to investigate and obtain evidence related to his
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alibi defense because the record on direct appeal was insufficient to address that claim. Only that
claim is preserved for postconviction. Accordingly, we affirm Freeman’s convictions and
sentences.
AFFIRMED.
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