State v. Ottens ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. OTTENS
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.
TRENTON A. OTTENS, APPELLANT.
Filed December 19, 2023. No. A-22-595.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Trenton A. Ottens appeals from his jury convictions for possession of a controlled
substance, resisting arrest, and child abuse, and the sentences imposed thereon. For the reasons
stated herein, we affirm.
II. STATEMENT OF FACTS
1. BACKGROUND
On May 13, 2020, the Lancaster/Lincoln County Narcotics Task Force (LLCNTF) received
information from a confidential informant (CI) that Ottens and his girlfriend, Dymond Casillas,
were transporting a fourth of a pound of methamphetamine from Denver, Colorado, to Lincoln,
Nebraska, to be delivered to rooms 102, 104, and 106 at the Oasis Inn and Suites, which rooms
had been converted to a single large room. We will refer to the single large room, encompassing
rooms 102, 104, and 106, as “room 104.” The CI also indicated that Ottens would be driving a
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silver Pontiac Grand Prix with Nebraska license plate number WFW672. The following day,
Investigator Adam Strode relayed this information to the Nebraska State Patrol so that the State
Patrol could attempt to locate the vehicle.
About an hour after receiving the message, Nebraska State Trooper Bryce Lingrin spotted
a vehicle traveling at a high rate of speed towards Lincoln that substantially matched the
aforementioned description, although it was missing license plates. After Trooper Lingrin
attempted to stop the vehicle, the vehicle fled and a high-speed chase ensued. During this pursuit,
Trooper Lingrin observed four individuals inside the vehicle. He described the driver as a white
male wearing a baseball cap and described one of the backseat passengers as a female with bright
red hair. He was unable to identify the other occupants because they had pulled hoods over their
heads. Trooper Lingrin also observed damage to the back bumper of the vehicle. After pursuing
the vehicle for a few minutes, Trooper Lingrin terminated the pursuit due to safety concerns after
the vehicle ran a red light at a high rate of speed. Trooper Lingrin informed Investigator Strode
that he “had a silver Grand Prix take off from [him] and [he] believe[d] that was the vehicle
[Strode] was looking for.”
After receiving information from Trooper Lingrin about the pursuit, LLCNTF
Investigators Strode, Christopher Eirich, Matthew Lesiak, and Colby Dahlke began surveilling the
Oasis Inn and Suites. However, after realizing that there had been a lapse in the surveillance,
Investigator Eirich drove through the parking lot looking for Ottens’ vehicle. Investigator Eirich
located Ottens and two other individuals in the hotel’s parking lot standing near a Grand Prix with
license plates matching the information provided by the CI. The investigators, who believed that
Ottens had recently been involved in a high-speed chase and having information that Ottens carried
a firearm, approached Ottens, identified themselves as police, and ordered Ottens to “get on the
ground.” Ottens initially took four to five steps in the opposite direction, as if he intended to run,
but he ultimately complied with the command. Investigator Eirich placed Ottens in handcuffs and
stood him up in order to perform a pat-down search for weapons.
At this time, about 20 to 30 bystanders formed a half-circle around the investigators.
According to the investigators, Ottens was encouraging the bystanders to intervene, and although
disputed by Ottens, Ottens began violently resisting arrest. Ottens’ mother and girlfriend attempted
to intervene and were eventually detained. Because investigators were outnumbered and the
situation was escalating, the investigators requested additional assistance from local law
enforcement. In order to secure the scene, Investigator Eirich eventually took Ottens to the ground
and Investigator Strode applied a dry stun with his taser. Thereafter, Investigator Eirich performed
a search incident to arrest during which he found a baggie with a half-gram of cocaine and $2,000
in cash on Ottens’ person. Officers also observed, in plain view, marijuana shake in the backseat
of the Grand Prix. During a dog sniff, which was performed on the vehicles belonging to Casillas
and Ottens, the drug dog alerted on a black Pontiac Firebird. A marijuana blunt was located on the
outside of the Firebird near the windshield wiper, but no other narcotics were located inside that
vehicle.
About 20 uniformed officers, including Trooper Lingrin, eventually arrived at the Oasis
Inn in response to the request for assistance. Trooper Lingrin spoke with Investigators Eirich and
Strode about his earlier pursuit of the Grand Prix. During that conversation, Trooper Lingrin
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identified the Grand Prix in the parking lot as the vehicle that he had pursued and identified Ottens’
girlfriend as the woman he believed he had observed as a backseat occupant.
Investigators then went to room 104 to contact the occupant. The occupant turned out to
be Ottens’ brother, who was watching Ottens’ two children and two dogs. After speaking with
Ottens’ brother, Investigator Eirich believed that there may have been marijuana in the room. After
Ottens’ brother took the children and dogs outside, investigators performed a protective sweep of
the room. During the protective sweep, investigators observed some rubber containers containing
THC wax and a long rifle situated next to a wall. They also observed the poor living conditions of
the room and noted that there were no other individuals in the room.
After the completion of the protective sweep, Investigator Eirich prepared an affidavit and
obtained a search warrant for the hotel room. During the search, law enforcement seized marijuana,
THC wax, and methamphetamine pipes with residue. Investigators observed that the room was
filthy, in complete disarray, had a strong odor of urine and feces, and had dog feces in several
places.
Ottens was transported to the police station. During an interview, Ottens made statements
that he had gone to Colorado to buy marijuana, that the substance in his pocket was probably
cocaine, and that although he primarily used marijuana, he had used methamphetamine
approximately 2 weeks earlier. He indicated that his girlfriend resided at the Oasis Inn, that he
frequented the Oasis Inn but did not have an address, and that methamphetamine pipes might be
located in a bedside drawer. Later, it was discovered that the Grand Prix that Trooper Lingren
chased was not the same Grand Prix located at the Oasis Inn.
2. CHARGES AND PRETRIAL MOTIONS
In October 2020, the State charged Ottens with possession of cocaine, possession of
methamphetamine, resisting arrest, and child abuse. Ottens filed several pretrial motions including
multiple motions to suppress and a Franks v. Delaware, 438 U.S. 154 (1978), motion challenging
the evidence obtained from the pre-warrant protective sweep of the hotel room; the evidence seized
from the hotel room pursuant to the search warrant; the affidavit in support of the search warrant
as not supporting a finding of probable cause because it contained material omissions, deliberate
falsehoods, and material misstatements of fact; and the evidence obtained as a result of the search
incident to his arrest. Following the hearings, the district court overruled all of Ottens’ pretrial
motions.
3. JURY TRIAL
During the trial, testimony was adduced from witnesses including Investigators Eirich,
Strode, Lesiak, and Dahlke; Trooper Lingren; Sergeant Jon Kossow; and Dymond Casillas. The
facts adduced at trial are consistent with the facts previously set forth. The jury convicted Ottens
of possession of cocaine, resisting arrest, and child abuse, but found him not guilty of possession
of methamphetamine.
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4. MOTION FOR NEW TRIAL
Ottens timely filed a motion for a new trial for his conviction for resisting arrest based on
juror misconduct. He alleged that, following his conviction, a juror emailed court staff indicating
that the juror may have been under undue pressure to convict Ottens for resisting arrest. The juror
further indicated that her vote now burdened her conscience. The district court overruled the
motion for a new trial.
5. SENTENCING
The district court sentenced Ottens to 12 months’ imprisonment followed by 12 months of
post-release supervision for possession of cocaine, and 6 months’ imprisonment each for resisting
arrest and child abuse, all of which were ordered to be served consecutively. Ottens has timely
appealed to this court.
III. ASSIGNMENTS OF ERROR
Ottens assigns, renumbered and restated, that: (1) the district court erred in failing to sustain
his motions to suppress evidence obtained from (a) the search incident to arrest and (b) the
warrantless sweep of the hotel room; (2) the district court erred in overruling his Franks Motion
because (a) the affidavit in support of the search of the hotel room lacked probable cause after the
redacted portions were removed from the affidavit and (b) the statements contained in the affidavit
were full of exaggerations and disregarded the truth; (3) the district court erred in failing to hold
an evidentiary hearing on, and failing to sustain, his motion for a new trial; and (4) and that his
trial counsel was ineffective in various respects.
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.A de novo standard of review should apply when an appellate court is reviewing a trial
court’s dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2) (Reissue 2016)
without conducting an evidentiary hearing. State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
We will continue to apply the abuse of discretion standard of review to appeals from motions for
new trial denied after an evidentiary hearing. Id. In a criminal case, a motion for new trial is
addressed to the discretion of the trial court, and that unless an abuse of discretion is shown, the
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trial court’s determination will not be disturbed. State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d
865 (2018).
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. ISSUES RELATED TO MOTIONS TO SUPPRESS
Ottens first assigns that the district court erred in failing to sustain his motions to suppress
relating to the evidence obtained (a) during the search incident to his arrest and (b) during the
warrantless sweep of the hotel room. Before addressing Ottens’ claims, we first review the law
related to searches and seizures.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution guarantee against unreasonable search and seizure. State v. Perry, 292 Neb. 708, 874
N.W.2d 36 (2016). Warrantless searches and seizures are per se unreasonable under the Fourth
Amendment, subject only to a few specifically established and well-delineated exceptions, which
must be strictly confined by their justifications. Id. The warrantless search exceptions Nebraska
has recognized include: (1) searches undertaken with consent, (2) searches under exigent
circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches
incident to a valid arrest. State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020). We have also
recognized that among the established exceptions to the warrant requirement is the automobile
exception. Id.(a) Search Incident to Arrest
Ottens first argues that the evidence obtained during the search incident to his arrest should
have been suppressed because the arrest was unlawful as it was not supported by probable cause.
In State v. Perry, 292 Neb. at 713-14, 874 N.W.2d at 41, the Nebraska Supreme Court
stated that “[a] valid arrest based on probable cause that a person is engaged in criminal activity is
allowed by the Fourth Amendment, and if an arrest is made based upon probable cause, a full
search of the person may be made incident to that arrest.”
Recognizing the right to search pursuant to a valid arrest, Ottens challenges the validity of
his arrest arguing that the police lacked probable cause to arrest him. In support of his theory,
Ottens makes two separate arguments. First, he argues that during the applicable suppression
hearing, the State failed to carry the burden to establish that law enforcement had probable cause
to arrest him and that, on appeal, this court should focus solely on the evidence adduced at that
particular hearing in determining whether the State met its burden. Second, Ottens suggests that
this court should focus our inquiry on his initial detention by law enforcement in the parking lot
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and, because probable cause was lacking to detain or arrest him, the district court erred in failing
to grant his motion to suppress.
As to the scope of the evidence to consider here, the matter involves one of settled law. As
the Nebraska Supreme Court reiterated in State v. Jennings, 305 Neb. 809, 819, 942 N.W.2d 753,
763 (2020), “[w]hen a motion to suppress is denied pretrial and again during trial on renewed
objection, an appellate court considers all the evidence, both from trial and from the hearings on
the motion to suppress.” Therefore, we consider all of the evidence from the suppression hearing
and the trial in determining whether probable cause existed to arrest Ottens. In so doing, we
recognize that Ottens takes exception to police first confronting him in the parking lot, ordering
him to the ground, and attempting to handcuff him on the basis of the information that they had
obtained up to that point in time.
A similar issue was presented in State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). In
analyzing the validity of an arrest and search in response to resisting a prior detention and allegedly
unconstitutional search, the Nebraska Supreme Court stated:
In the case at bar, after [the defendant] allegedly kicked [the officer], [the officer]
had probable cause to arrest [the defendant] for assault of an officer in the third degree.
When [the defendant] was subdued and held to the ground by [the officer] putting his knee
into [the defendant’s] back, the initial detention was transformed into a custodial arrest.
This arrest was valid regardless of whether [the officer’s] prior search was constitutional.
Any search of [the defendant’s] person that occurred after that time, including [the
officer’s] search of [the defendant’s] pockets from which [the officer] ultimately retrieved
the baggie, would fall under the search incident to a lawful arrest exception to the warrant
requirement. Therefore, even if [the officer’s] initial search was unlawful, the evidence
need not be suppressed under the exclusionary rule, because it can be justified under
another exception to the warrant requirement.
Id., at 203, 859 N.W.2d at 331.
As the Nebraska Supreme Court noted in Wells, this rule applies regardless of whether the
resistance is to an unlawful arrest or an unlawful detention and search. Applying this rationale to
the case at bar, we note that there was significant evidence that Ottens resisted officers’ attempts
to detain him which actions led to Ottens being charged with, and ultimately convicted of, resisting
arrest. Ottens’ actions in resisting arrest independently provided police with probable cause to
arrest him. We find that regardless of whether the officer’s initial encounter with Ottens is
characterized as a detention or attempt to arrest, Ottens’ conduct in response to that encounter
entitled the police officer to arrest Ottens and search him incident to that arrest. As such, the district
court did not err in denying Ottens’ motion to suppress the evidence obtained during the search of
his person incident to that arrest.
(b) Protective Sweep of Hotel Room
Ottens next contends that the district court erred in failing to suppress evidence obtained
during the warrantless sweep of the hotel room. He argues that the information obtained during
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the illegal sweep of the room was utilized in the affidavit to obtain a search warrant and, without
that information, probable cause did not exist to issue a warrant to search that room.
In State v. Eberly, 271 Neb. 893, 899-900, 716 N.W.2d 671, 677 (2006), the Nebraska
Supreme Court stated:
A police officer who has obtained neither an arrest warrant nor a search warrant
cannot make a nonconsensual and warrantless entry into a suspect’s home in the absence
of exigent circumstances.
Exigency determinations are generally fact intensive. But several commonly
recognized categories include: “(1) ‘hot pursuit’ of a fleeing felon; (2) threatened
destruction of evidence inside a residence before a warrant can be obtained; (3) a risk that
the suspect may escape from the residence undetected; or (4) a threat, posed by a suspect,
to the lives or safety of the public, the police officers, or to [an occupant].” This fourth
circumstance is also called the “emergency doctrine.”
(Citations omitted.)
Here, in overruling the motion to suppress, the district court noted that at the time of Ottens’
arrest, the scene was chaotic and dangerous due to a crowd of people yelling and approaching the
officers. After Ottens’ arrest, officers contacted Ottens’ brother, who removed Ottens’ two children
and two dogs from the hotel room. The district court stated “I think the officers had an obligation
to themselves to secure that whole area. And I think that this was part of that. I think they had the
right to go in and sweep that room.”
We construe the district court’s order as finding that exigent circumstances justified the
sweep of the hotel room prior to issuance of the search warrant. Ottens argues that exigent
circumstances did not justify any warrantless search. The State disagrees, but posits that, even if
the protective sweep was unlawful, the inevitable discovery doctrine applies because the police
properly uncovered the same evidence after obtaining a valid warrant to search the hotel room.
Under the inevitable discovery doctrine, evidence obtained without a valid warrant is nonetheless
admissible if the State shows by a preponderance of the evidence that the police would have
obtained the disputed evidence by proper police investigation entirely independent of the illegal
investigative conduct. State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
In this case, police eventually obtained a warrant to search the hotel room that Ottens claims
had been improperly searched prior to obtaining that warrant. Ottens specifically argues that the
affidavit in support of the search warrant would have been insufficient to support a finding of
probable cause to search the hotel room if the description of evidence found during the protective
sweep of the room was excluded from the affidavit.
In State v. Beeken, 7 Neb. App. 438, 585 N.W.2d 865 (1998), this court discussed the effect
of an alleged illegal entry on the validity of a search warrant where the affidavit contained
information about observations made during the alleged illegal entry. In analyzing the impact, we
quoted U.S. v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cert. denied 506 U.S. 1049, 113 S. Ct. 968,
122 L. Ed. 2d 124 (1993), stating that, “in all such cases, the trial court ‘should consider whether
the warrant affidavit, once purged of tainted facts and conclusions, contains sufficient evidence to
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constitute probable cause for issuance of the warrant.’” State v. Beeken, 7 Neb. App. at 452, 585
N.W.2d at 874.
At this point, Ottens argues that the description of the evidence obtained during the
protective sweep is only one statement among several statements included in the affidavit for the
search warrant which statements should not have been considered in determining whether the
affidavit in support of the search warrant established probable cause. Ottens claims that the police
either knowingly and intentionally, or with reckless disregard for the truth, included false or
misleading statements or omitted information material to a probable cause finding in the affidavit
for the search warrant of the hotel room. As such, we will consider that argument in connection
with Ottens’ next assignment of error, as we need to determine whether the warrant was valid in
order to determine whether police would have inevitably discovered some of the evidence first
observed during the protective sweep.
2. FRANKS MOTION
Ottens next assigns that the district court erred in overruling his Franks v. Delaware, 438
U.S. 154 (1978), motion. He argues that after striking the false or improperly obtained statements
contained in the affidavit in support of the search warrant, the affidavit was insufficient to support
a finding of probable cause to search the hotel room. He further argues that the affidavit was so
full of exaggerations and disregard for the truth, that the affidavit should have been found lacking
probable cause.
In State v. Short, 310 Neb. 81, 124-26, 964 N.W.2d 272, 307-08 (2021), 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.”
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
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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.
Ottens specifically argued in his Franks motion that the affidavit in support of the search
warrant failed to contain information governing the CI’s reliability and contained false,
misleading, and/or omitted information including that: (1) photos of the Grand Prix were obtained
from Ottens’ Facebook page and forwarded to the Nebraska State Patrol; (2) Trooper Lingrin
observed a Grand Prix matching the CI’s description and the photos; (3) Trooper Lingrin positively
identified Casillas as a passenger in the vehicle that he pursued; (4) the Grand Prix located at the
Oasis Inn was the same vehicle that Trooper Lingrin had unsuccessfully pursued; (5) the vehicle
involved in the pursuit exceeded speeds of 100 miles per hour; (6) Trooper Lingrin identified
specific body damage on the vehicle he was pursuing and which damage was documented on his
cruiser camera video; (7) Ottens resisted arrest; (8) Ottens was observed to be standing outside of
the Oasis Inn near the vehicle; (9) the Oasis Inn’s on-duty manager confirmed that Ottens was
known to live with his girlfriend in room number 104; (10) Ottens’ brother took custody of Ottens’
dogs and children while Ottens was being detained; (11) that Ottens’ brother stated that, while
inside the hotel room, he observed what he believed were several marijuana dispensary containers
with marijuana leaves printed on them; and (12) a police service dog sniff of Ottens’ Grand Prix
and the Pontiac Firebird was completed with the dog positively indicating to the odor of narcotics
in the Firebird.
Ottens argues that the affidavit’s collective inaccurate information was intentionally false
or made with reckless disregard for the truth, and that when the inaccurate allegations are excised,
the remaining allegations contained in the affidavit were insufficient to constitute probable cause
and the court erred in overruling his Franks v. Delaware, 438 U.S. 154 (1978), challenge. We
address each such argument below.
First, Ottens argues that because the affidavit in support of the search warrant did not
contain information to demonstrate the CI’s reliability, that language should have been stricken.
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We agree that the warrant here was issued on the strength of information provided by the CI. As
the Nebraska Supreme Court set forth in State v. Edmonson, 257 Neb. 468, 476-77, 598 N.W.2d
450, 458 (1999):
When a search warrant is obtained on the strength of an informant’s information,
the affidavit in support of the issuance of the warrant must (1) set forth facts demonstrating
the basis of the informant’s knowledge of criminal activity and (2) establish the informant’s
credibility, or the informant’s credibility must be established in the affidavit through a
police officer’s independent investigation. Among the ways in which the reliability of an
informant may be established is by showing in the affidavit to obtain a search warrant that
(1) the informant has given reliable information to police officers in the past, (2) the
informant is a citizen informant, (3) the informant has made a statement that is against his
or her penal interest, and (4) a police officer’s independent investigation establishes the
informant’s reliability or the reliability of the information the informant has given. An
affidavit in support of the issuance of a search warrant must affirmatively set forth the
circumstances from which the status of the informant can reasonably be inferred.
(Citations omitted.) (Emphasis in original.) Here, the affidavit included an allegation of the
credibility of the CI based upon reliable information provided to law enforcement in the past.
During the hearing on the Franks Motion, defense counsel specifically stated that he was
not challenging the reliability of the CI’s statements and that he would be willing to stipulate that
the CI’s statements were reliable. Additionally, counsel withdrew his Neb. Rev. Stat. § 27-510(Reissue 2016) motion contesting the credibility of the CI. Because we find that Ottens waived
any challenge to the CI’s credibility and, in fact, stipulated that the CI’s statements were reliable,
we reject his challenge on appeal to the sufficiency of the information to support the CI’s
credibility.
Ottens next argues that the affidavit contained multiple false statements which should be
construed as knowing or intentionally false statements or statements made with reckless disregard
for their truth which were material to the probable cause finding. We summarize those contentions,
and evidence adduced in response thereto.
First, Ottens contends that the affidavit provided that Facebook photos of the Grand Prix
were forwarded to the Nebraska State Patrol and that Trooper Lingrin observed a vehicle matching
the description and photographs, although the testimony at trial indicated that no Facebook
photographs were sent to the Nebraska State Patrol. In response, Investigator Eirich testified that
“it was my understanding at the time of authoring this that that had happened. And I had not asked
specifically about the picture. We . . . just had [a] general conversation that he had forwarded the
information.”
Second, Ottens argues that the affidavit stated that Trooper Lingrin positively identified
Casillas as the passenger in the vehicle that Trooper Lingrin had unsuccessfully pursued in contrast
to Trooper Lingrin’s trial testimony that he did not make a positive identification because he did
not see her face during the pursuit. Trooper Lingrin testified that he told investigators at the Oasis
Inn something to the effect of “I know that’s her, but I can’t prove it.”
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Third, Ottens takes issue with the statements in the affidavit that indicated that the vehicle
observed at the Oasis Inn was the same vehicle that Trooper Lingrin had pursued earlier that day
and that Trooper Lingrin identified specific bumper damage to the vehicle that would be depicted
on the cruiser footage. The evidence adduced during the suppression hearing and at trial revealed
that upon closer inspection of Trooper Lingrin’s cruiser footage from the pursuit, the vehicles were
not the same; that it was later determined that the two vehicles were different; and that Investigator
Eirich had not viewed the video footage prior to drafting the affidavit.
Fourth, Ottens argues that the affidavit incorrectly stated that the vehicle involved in the
pursuit exceeded speeds of 100 m.p.h despite an audio recording which did not indicate speeds
over 99 m.p.h. Investigator Eirich testified that when drafting the affidavit, he relied on
information from Investigator Strode, who had listened to the call and had communicated with
Trooper Lingrin after the pursuit. Investigator Eirich stated that Strode informed him that the
vehicle was traveling at a “speed upwards of 100 miles per hour or more.”
Fifth, Ottens argues that the affidavit falsely stated that he resisted arrest when investigators
contacted him in the Oasis Inn’s parking lot despite witness testimony to the contrary. In response,
officers testified that Ottens resisted arrest. Ottens was eventually convicted of this charge at trial.
Sixth, Ottens argues that the affidavit for the search warrant falsely claimed he was
standing outside of the Oasis Inn near the Grand Prix when he was actually near a completely
different vehicle and was at least four stalls away on the other side of a dark-colored pickup.
Seventh, Ottens argues that the affidavit falsely stated that Julie Pinkston was the on-duty
manager of the Oasis Inn and had indicated that Ottens lived in rooms 102, 104, and 106 with his
girlfriend. Ottens argues that Pinkston was not the on-duty manager of the Oasis Inn at that time
and had no memory of the conversation with investigators. At the Franks hearing, Pinkston
testified that although she had a “short-term memory disability,” she remembered law enforcement
being there that night, but that she was not on duty and she did not remember speaking to officers
that night.
Eighth, Ottens argues that the affidavit falsely stated that his brother arrived to take custody
of the children and the dogs while Ottens and his girlfriend were being detained, when in fact his
brother was inside the hotel room playing video games with the children and removed the children
and the dogs when law enforcement knocked on the door.
Ninth, Ottens argues that the affidavit incorrectly claimed that his brother informed law
enforcement that he believed that there were several marijuana dispensary containers with
marijuana leaves printed on them in the room. Ottens’ brother testified that an officer asked him if
he had seen anything in the room and he stated, “I told him that I seen tubes” but that he never told
officers that he saw marijuana or drug paraphernalia in the room.
Finally, Ottens argues that the affidavit contained omissions. It stated that a dog sniff was
performed on two vehicles and that the dog positively alerted and indicated to the odor of
controlled substances in the black Pontiac Firebird. However, Ottens argues that when the dog
alerted, the officer was able to immediately observe a marijuana blunt on the exterior of the vehicle
in front of the windshield on the driver’s side and no contraband was located during a search of
the Firebird. The affidavit did not mention that the blunt had been located on the exterior of the
vehicle nor did it indicate that a search of the Firebird had been conducted.
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The district court, in ruling on the Franks Motion and, after striking the language that
Ottens claimed was false or misleading, stated:
When I review the affidavit, even striking the items that I’ve mentioned, I find the
affidavit is sound, given the parameters that have been given to me by State v. Short and
others that I reviewed. And I know you’re familiar with all that.
And so we have, again, kind of this odd set of circumstances that the police arrive.
They think that Ottens and Casillas have been driving on the interstate and avoiding
officers on the interstate show up. The [CI], again, for the purpose of this hearing, I find
credible. And I think everything swings from that.
....
. . . What I will do is say I find that the standards have been met, that I don’t believe
there were deliberate falsehoods. . .
And I don’t think overall there was a reckless disregard for the truth. Was there
some embellishment? I believe so. Just sounds to me like there was.
[Defense Counsel], I agree with you. I think there is some embellishment here. Is
that fatal to this whole process? I don’t believe so. You know, the reckless disregard for
the truth is something that’s pretty significant. It’s a standard that we’re familiar with. And
I don’t believe that in preparing the affidavit there was a reckless disregard for the truth. In
fact, I would say, I’m not sure any of these statements actually were given with reckless
disregard for the truth. Were they maybe a little reckless? Maybe they were embellished, I
could grant you that.
But, two things. One, I’m not sure that any of them would come out or should come
out, but, number two, even given the ones that I’ve talked about. I think that the affidavit
still passes constitutional muster in terms of what it is.
Following our review of the record, we find no error associated with the district court’s
denial of Ottens’ Franks motion. Many of Ottens’ allegations relate to law enforcement’s false
belief that they engaged in a high-speed chase of Ottens’ vehicle prior to locating him at the Oasis
Inn. Ottens then points to other discrepancies once law enforcement located him in the parking lot
and began their investigation. As it relates to those inaccuracies, we find no clear error in the
district court’s conclusion that these were not knowingly false allegations by police or allegations
made in reckless disregard for their truth. At this stage, following the Nebraska Supreme Court’s
dictates in State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021), we would only be required to
excise intentionally false statements in reviewing the affidavit for probable cause. Having found
these statements contained in the affidavit were not knowingly false or made in reckless disregard
for the truth, we are not required to perform that function.
That said, even when we remove all such allegations from the affidavit, we are left with
allegations from a credible CI that Ottens was in the process of delivering a large quantity of
methamphetamine from Denver, Colorado to the exact hotel in Lincoln, Nebraska, where police
eventually located Ottens. And Ottens was found in the hotel’s parking lot near the exact vehicle
identified by the CI. Upon arresting Ottens and discovering cocaine on his person during a search
incident to that arrest, and after searching Ottens’ car, police had not located the methamphetamine
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described by the CI. This information provided probable cause for the warrant to search the hotel
room where the CI alleged the methamphetamine would be delivered even without reference to
items described in the affidavit related to the warrantless sweep of the room.
Because we find that even when the challenged allegations are removed from the affidavit,
the affidavit still provided probable cause to search the hotel room on the strength of the CI’s
information. Accordingly, we find that the district court did not err in denying Otten’s Franks
motion and that applying the inevitable discovery doctrine, we need not determine whether the
police erred in their protective sweep of the hotel room before obtaining the warrant to search that
room. These assignments of error fail.
3. DENIAL OF MOTION FOR NEW TRIAL
Ottens next assigns that the district court erred in denying his motion for a new trial and
failing to hold an evidentiary hearing thereon.
In criminal cases, motions for new trial are governed by Neb. Rev. Stat. §§ 29-2101 through
29-2103 (Reissue 2016). See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017). Section 29-2101
provides seven grounds upon which a motion for new trial may be granted. One such ground in
§ 29-2101(2) is juror misconduct. Ottens argues the district court erred in dismissing his motion
for a new trial without granting him an evidentiary hearing on his claim of juror misconduct.
Section 29-2102(2) dictates when an evidentiary hearing is required in connection with a request
for a new trial. That subsection provides:
If the motion for new trial and supporting documents fail to set forth sufficient facts,
the court may, on its own motion, dismiss the motion without a hearing. If the motion for
new trial and supporting documents set forth facts which, if true, would materially affect
the substantial rights of the defendant, the court shall cause notice of the motion to be
served on the prosecuting attorney, grant a hearing on the motion, and determine the issues
and make findings of fact and conclusions of law with respect thereto.
Here, Ottens filed a timely motion for a new trial pursuant to § 29-2101(2) alleging juror
misconduct based upon the allegation that after the conclusion of the trial, one of the jurors emailed
court staff indicating that “there may have been undue pressure placed on [the juror] such that she
voted in a way that violated her conscience.” Ottens attached an affidavit to his motion which
contained an email from the juror. The email stated, in part:
. . . For 3 of the 4 counts I still stand my ground, but I can’t sleep at night for giving in to
one of the counts which landed [Ottens] guilty. I was so tired after 4 hours of deliberation
that when it came to count 3, I buckled and I have been severely depressed about it since
the verdict was read aloud Thursday. I’ve reached out to psychiatric counseling services at
UNL for the first time and have an appointment later today. I’m just not sure how I can get
over what I perceive as an [i]njustice. As an ex-juror, is there anything I can do to express
my opinion to the judge or whoever to relieve my burden?
At a hearing thereon, the juror was present pursuant to a subpoena. However, during that
hearing, the court sustained the State’s objection to the court receiving the affidavit or hearing
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juror testimony relying on Neb. Rev. Stat. § 27-606 (Reissue 2016) (relating to competency of
juror as witness; at trial; inquiry into the validity of verdict or indictment).
Following that ruling, the district court overruled Otten’s motion for a new trial without an
evidentiary hearing based upon its finding that, on the face of Ottens’ motion and supporting
documents, Ottens failed to set forth sufficient facts to establish the applicability of one of the
statutory grounds for a new trial set forth in § 29-2101. Specifically, the court stated, “I don’t find
misconduct of the jury, at least I don’t find that I’ve been cited any case law that says a tired juror
who buckled, that that’s misconduct, accident, or surprise.” The court went on to state that, even
assuming the presence of juror misconduct, on the face of his allegations and supporting
documents, Ottens was unable to overcome § 27-606(2) which provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of the jury’s deliberations or to
the effect of anything upon his or any other juror’s mind or emotions as influencing him to
assent to or dissent from the verdict or indictment or concerning his mental processes in
connection therewith, except that a juror may testify on the question whether extraneous
prejudicial information was improperly brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon any juror. Nor may his affidavit or
evidence of any statement by him indicating an effect of this kind be received for these
purposes.
After finding that the juror’s email necessarily involved an examination of the juror’s
mental process, and that there was no indication that there had been any extraneous, prejudicial
information, or any outside influence improperly brought to the jury in the documents provided to
the district court, the court excused the juror without hearing her testimony and overruled Ottens’
motion for a new trial and request for an evidentiary hearing. We agree with the district court.
In State v. Allen, 314 Neb. 663, 684-85, 992 N.W.2d 712, 729 (2023), the Nebraska
Supreme Court set forth the standard to sustain a motion for a new trial based on juror misconduct:
A criminal defendant claiming jury misconduct bears the burden of proving, by a
preponderance of the evidence, (1) the existence of jury misconduct and (2) that such
misconduct was prejudicial to the extent that the defendant was denied a fair trial. We have
held that when an allegation of jury misconduct is made and is supported by a showing
which tends to prove that serious misconduct occurred, the trial court should conduct an
evidentiary hearing to determine whether the alleged misconduct actually occurred. The
court’s obligation to conduct an evidentiary hearing is satisfied where the judge provides
the movant with an opportunity to present evidence at the hearing on the motion for new
trial.
The matter of whether the misconduct occurred is largely a question of fact. If jury
misconduct occurred, the trial court must then determine whether it was prejudicial to the
extent that the defendant was denied a fair trial. The question whether prejudice resulted
from jury misconduct must be resolved by the trial court’s drawing, from an independent
evaluation of all the circumstances of the case, of reasonable inferences as to the effect of
the extraneous information on an average juror.
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However, the subject matter of the complaining party’s offer of proof at an
evidentiary hearing on alleged jury misconduct is carefully circumscribed by statute. An
evidentiary hearing with regard to allegations of jury misconduct does not extend to matters
which are barred from inquiry under § 27-606(2).
In Golnick v. Callender, 290 Neb. 395, 415-17, 860 N.W.2d 180, 196-97 (2015), the
Nebraska Supreme Court stated:
Rule 606(2) prohibits a juror from testifying about the validity of a verdict based
on the jury’s deliberations or the juror’s mental processes: “Upon an inquiry into the
validity of a verdict or indictment, a juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or to the effect of anything upon his
or any other juror’s mind or emotions as influencing him to assent to or dissent from the
verdict or indictment or concerning his mental processes in connection therewith . . . .”
Rule 606(2) also prohibits a court from receiving a juror’s “affidavit or evidence of
any statement by him indicating an effect of this kind.” Its exceptions are limited to
permitting a juror to “testify on the question whether extraneous prejudicial information
was improperly brought to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror.” We have previously looked to federal case law
in applying rule 606(2) because it is adopted from Fed. R. Evid. 606(b).
The federal rule “is grounded in the common-law rule against admission of jury
testimony to impeach a verdict and the exception for juror testimony relating to extraneous
influences.” The common-law rule that shields jury deliberations, in turn, rested on
substantial policy considerations to protect the integrity and finality of jury trials.
Permitting jurors to impeach the verdict would result in defeated parties harassing jurors
“‘in the hope of discovering something which might invalidate the finding [and] make what
was intended to be a private deliberation, the constant subject of public investigation—to
the destruction of all frankness and freedom of discussion and conference.’” So Nebraska’s
rule 606(2) promotes the public interests of protecting jurors’ freedom of deliberation and
the finality of judgments, absent a plausible allegation of juror misconduct.
We have held that when an allegation of jury misconduct is made and is supported
by a showing which tends to prove that serious misconduct occurred, the trial court should
conduct an evidentiary hearing to determine whether the alleged misconduct actually
occurred. But rule 606(2) “prohibits admission of a juror’s affidavit to impeach a verdict
on the basis of the jury’s motives, methods, misunderstanding, thought processes, or
discussions during deliberations, which enter into the verdict.”
As applied to the instant case, because on the face of the documents provided to the court
in connection with Ottens’ motion for new trial under § 29-2101(2), there was no evidence that
extraneous prejudicial information was improperly brought to the jury’s attention, nor was there
any evidence of an outside influence that was improperly brought to bear upon the juror, the juror’s
email and proposed testimony did not fall under any exception under § 27-606(2) or satisfy Ottens’
burden under § 29-2102(2). Because a juror cannot testify to the effect of anything upon that juror’s
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mind or emotions that influenced the juror to assent to the verdict, and an evidentiary hearing with
regard to allegations of jury misconduct does not extend to matters which are barred from inquiry
under § 27-606(2), the district court did not err in denying an evidentiary hearing on the motion
for a new trial or subsequently denying Ottens request for a new trial under the dictates of
§ 29-2102(2). This assignment of error fails.
4. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Ottens’ final assignment of error is that his trial counsel was ineffective in (a) not filing a
motion in limine to exclude, and in failing to object to testimony, regarding his children being
taken into DHHS custody and the incorrect legal conclusions testified to by law enforcement
concerning the matter that were highly prejudicial and not subject to the same legal standard as the
criminal charge; (b) failing to elicit testimony from Investigator Eirich accepting responsibility for
the errors and mistruths in the affidavit for search warrant at the Franks hearing; (c) failing to
identify the other voices on the audio of the vehicle pursuit; (d) failing to address that the only
information police obtained regarding Ottens’ possession of firearms was years old; (e) failing to
object to the admission of an exhibit which consisted of Facebook photographs of Ottens holding
firearms, when the court solicited and accepted testimony from State’s counsel instead of a
witness; (f) failing to retain an expert to elicit scientific evidence the lay witnesses did not possess;
(g) attempting to elicit scientific evidence from a lay witness who did not have scientific
knowledge thereby presenting inaccurate information to Ottens’ detriment; (h) failing to offer the
prior sworn testimony of unavailable witnesses; and (i) failing to offer surveillance video
recovered from the Oasis Inn in pretrial motions and during the trial.
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.
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) Motion in Limine
Ottens first assigns that his counsel was ineffective for failing to file a motion in limine to
exclude evidence regarding the children’s removal by DHHS and in failing to object to that line of
questioning. Ottens argues that the evidence was inadmissible pursuant to Neb. Rev. Stat. § 27-403(Reissue 2016) as highly prejudicial and under Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022) as
improper character evidence.
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The decision whether or not to object has long been held to be part of trial strategy. State
v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022). 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 decisions. Id.Here, in addition to being charged with drug-related offenses and resisting arrest, Ottens
was also charged with child abuse stemming from conditions in the hotel room where his children
were staying. The State elicited evidence that established the children were living in a hotel room
at the Oasis Inn, were removed from the room due to its unsanitary conditions, and due to Ottens’
arrest, were placed in DHHS custody with physical placement with the children’s grandparents.
Ottens appears to take issue with three questions relating to DHHS’ role in such a situation and
that he was informed that the children would not be returned without DHHS’ authorization. We
find the record on appeal is sufficient to address this allegation.
Because questions related to the removal of Ottens’ children from the Oasis Inn formed the
basis for the child abuse charge, we find that the questions and responses thereto were not
prejudicial to the other three charged offenses for which Ottens was convicted. The questions
related to the removal of Ottens’ children were in no way related to the charges related to resisting
arrest or the possession of cocaine found on Ottens’ person in the search incident to his arrest. And
based upon the evidence relating to the condition of the hotel room wherein Ottens’ children were
found, we find the questions and responses governing DHHS’ role in securing his children likewise
did not prejudice him related to his conviction for child abuse. This specific allegation of
ineffective assistance of counsel fails.
(b) Investigator Eirich Testimony
Ottens next assigns that his trial counsel was ineffective when, during the Franks v.
Delaware, 438 U.S. 154 (1978), hearing, counsel failed to prompt Investigator Eirich to accept
responsibility for errors and mistruths contained in the affidavit for the search warrant which
Investigator Eirich authored.
At the Franks hearing, counsel cross-examined Investigator Eirich on multiple alleged
inaccuracies in the affidavit, including whether information on the vehicle was, in fact, received
from Facebook photos; whether photographs were sent to the Nebraska State Patrol; whether
Trooper Lingrin positively identified Casillas as a passenger in the fleeing vehicle; whether the
speed of the fleeing vehicle exceeded 100 m.p.h.; whether specific body damage on the fleeing
vehicle could be seen in the cruiser footage; what vehicle Ottens was near when he was arrested;
why the affidavit omitted information related to the location of the marijuana blunt and how
narcotics were not found in the Pontiac Firebird; whether the information from the search of the
vehicle was relayed to Investigator Eirich prior to the completion of the search warrant; and the
location of Ottens’ brother during Ottens’ arrest.
Ottens argues that during the trial, counsel elicited testimony that it was Investigator
Eirich’s responsibility to ensure that information contained in the affidavit was correct. However,
Ottens argues that this should have also been elicited during the Franks hearing so the affidavit,
as it related to the child abuse charge, could have been considered during the suppression hearing.
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The record here affirmatively rebuts any alleged deficiency or prejudice. Specifically, the
district court found that, even after striking alleged inaccuracies contained in the affidavit, the
affidavit still contained sufficient allegations of probable cause to support the issuance of the
search warrant and we agree. And because we likewise agree that there was no clear error
associated with the district court’s findings that any inaccuracies contained within the affidavit
were not deliberate nor written with a reckless disregard for the truth, we find no prejudice
associated with defense counsel’s alleged failure to elicit testimony at the Franks hearing regarding
Elrich’s individual responsibility for inaccuracies allegedly contained in the search warrant. This
claim fails.
(c) Audio Recording of Pursuit
Ottens next assigns that trial counsel was ineffective during questioning for failing to
differentiate voices on the audio recording of the video documenting Trooper Lingrin’s pursuit of
a Grand Prix. Ottens argues that had counsel clarified the identities of the individuals associated
with the voices contained on the audio recording, this would have revealed officer error, which
then impacted officers’ approach of Ottens in the hotel’s parking lot.
We find that Ottens cannot establish prejudice due to this alleged deficiency. Regardless
of the inaccuracy in officers’ mistaken belief that the vehicle involved in the high-speed pursuit
was the same vehicle located at the Oasis Inn, as we explained before, Ottens’ person was searched
pursuant to a valid arrest and there was sufficient probable cause to support the warrant to search
the hotel room. Further clarification regarding the facts that led to officers’ mistaken belief that
Ottens had been in the high-speed chase prior to being located at the hotel parking lot had no
bearing on the evidence relating to the convictions as we have previously described herein. This
claim of ineffective assistance of counsel fails.
(d) Information Regarding Firearms Possession
Ottens assigns that his trial counsel was ineffective in failing to address that the only
information regarding Ottens’ possession of firearms was years old.
Here, prior to approaching Ottens, investigators had reviewed reports indicating that Ottens
might be carrying firearms. Additionally, investigators located photographs posted to Ottens’
Facebook page depicting Ottens holding and shooting handguns and long rifles. The report, which
was received into evidence, depicted an entry on March 28, 2017, which stated:
[Ottens] uses “Lucky Livingston” as his [Facebook] name. [Ottens] posted photos on
03-28-17 at an unknown location of him holding a black semi-auto handgun and a
[black/brown] pump shotgun. Use caution as both have a history of possessing firearms,
using narcotics and being unfriendly with police.
[V]arious photos/ videos of Ottens w/firearms were located on Ottens’ public
Facebook profile . . . . Photos/videos were screen shotted and saved to Resource Space.
Ottens argues that the failure to highlight the outdated information concerning his prior use
of firearms compromised him in that reliance on this outdated information “was a shallow ruse for
obtaining evidence of drug crimes without [a] warrant.” Brief for appellant at 60. But as we have
already explained earlier in this opinion, law enforcement had probable cause to search Ottens
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pursuant to a search incident to a valid arrest and had a valid search warrant to search his hotel
room. As such, examination of Ottens’ history of prior gun use did not prejudice Ottens with
respect to the three convictions we have outlined before. This assignment of error fails.
(e) Failure to Object
During the Franks v. Delaware, 438 U.S. 154 (1978), hearing, the State offered an exhibit
which included Facebook photographs of Ottens holding different firearms. Defense counsel
objected to the exhibit on the bases of relevance and surprise stating:
Judge, I haven’t seen any of these until today. If these pictures were on . . . Ottens’
Facebook page as the witness claims, they should have been obtained, provided to counsel
months ago. We’ve been arguing about this issue since January. This is the first day I ever
heard of any pictures.
....
. . . I would object. Both objections were made to Exhibit 40 and 41, relevance and
surprise. [The prosecutor] does say that these are on [Ottens’] public Facebook page. That
may or may not be true. I do not know that to be true. I have not been provided copies of
these pictures, despite having had depositions in February and having alerted the State to
my request for such evidence. This is surprise as well.
The court received the exhibit over Ottens’ objection.
After the State requested that Investigator Eirich identify each of the photos, Ottens’
counsel made a standing objection stating that “I don’t know how we know it’s from [Ottens’]
Facebook page. It’s not associated with Facebook at all by the looks of it.” Ottens argues that his
trial counsel should also have renewed his relevancy objection based upon a lack of foundation.
Ottens’ assignment appears to relate to the failure to renew a foundational objection during
the suppression hearing. However, the rules of evidence do not apply to suppression hearings.
State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014). Defense counsel is not ineffective for failing
to raise an argument that has no merit. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
This assignment of error fails.
(f) Failure to Retain Expert and Eliciting Scientific Evidence From Lay Witness
Ottens next assigns that his trial counsel was ineffective in failing to retain an expert to
testify regarding scientific evidence that lay witnesses did not possess. He further claims that trial
counsel was ineffective in attempting to elicit scientific evidence from a lay witness who did not
have requisite scientific knowledge which resulted in inaccurate information being presented to
the jury to Ottens’ detriment.
During the trial, related to the child abuse charge, the State adduced testimony that raw
marijuana located in the hotel room was readily accessible by the children. Ottens argues that
defense counsel attempted to elicit testimony from Trooper Strode that heat is required in order
for THC to cause a marijuana high. Ottens claims that this testimony was offered to raise doubt as
to the risk of harm that raw marijuana posed to the children. However, Ottens contends that his
trial counsel’s line of questioning caused the opposite to occur.
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We find that, based upon the record, Ottens could not demonstrate any prejudice from trial
counsel’s actions or inactions on this issue. Even if the testimony regarding raw marijuana is
disregarded, other evidence provided sufficient evidence to support Ottens’ child abuse conviction
including that the hotel room was filthy, smelled of urine and feces, that there was dog feces in the
room, and that a firearm and methamphetamine pipes with residue could be easily accessed by the
children. Because of the overwhelming evidence supporting his child abuse conviction, Ottens
cannot establish any prejudice that resulted from his trial counsel’s alleged failure to elicit
testimony to establish that raw marijuana posed a decreased risk to the children or in failing to
have an expert witness testify regarding this issue. This claim fails.
(g) Failing to Offer Prior Sworn Testimony of Unavailable Witnesses
Ottens next assigns as error that trial counsel was ineffective in failing to offer the prior
sworn testimony of two unavailable witnesses – Stacy Ottens and Ottens’ brother, Joshua Ottens.
Because Ottens is required only to name the individual witnesses not called and is not required to
provide the substance of their testimony, this allegation is normally sufficient to preserve the
assignment for a later proceeding. See State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
Here, Ottens’ claim relates to trial counsel’s failure to admit the sworn statements from the
two identified witnesses who Ottens claims were unavailable but had testified during the Franks
hearing. Ottens argues that Stacy Ottens’ testimony would have supported Ottens’ claim that he
did not resist arrest; however, because other witnesses at trial testified that Ottens’ did not resist
arrest, the testimony Ottens sought to introduce from Stacy Ottens was merely cumulative. And
regarding Ottens’ claim that Joshua Ottens’ testimony would have established that Ottens’ children
were safely managed, when viewed against the overwhelming and uncontroverted evidence of the
contents and condition of the hotel room in which the children were found, we find no prejudice
associated with any alleged error by trial counsel in failing to offer the witnesses’ prior statements
even assuming that these statements would have been admissible if offered. This assignment of
error fails.
(h) Failing to Offer Surveillance Video From Oasis Inn
Finally, Ottens assigns as error that his trial counsel was ineffective in failing to offer
surveillance video from the Oasis Inn at any point during pretrial or trial. He claims that offering
the surveillance video would have shown that he did not resist arrest, and thus would have aided
in his motion to suppress evidence and would have resulted in his acquittal of the charge of
resisting arrest.
The record establishes that trial counsel filed a pretrial motion to suppress related to the
allegation that Ottens resisted arrest and the evidence obtained as a result of his alleged unlawful
arrest. In the motion to suppress, trial counsel alleged that an investigation had revealed that the
Oasis Inn’s cameras had captured video surveillance of the incident, that the front desk manager
indicated that the video showed that Ottens did not resist arrest, and that the office manager
believed that the video had been provided to law enforcement, but that surveillance videos are
automatically deleted after 30 days and the video of the relevant date was no longer available.
During the suppression hearing, trial counsel requested that the court compel law enforcement to
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provide the surveillance video. The State responded that it was not aware of the existence of any
such surveillance video and, during the course of the proceedings, Investigators Lesiak, Strode,
and Eirich denied collecting any surveillance video from the Oasis Inn.
Subsequently, on September 17, 2021, defense counsel addressed the motion to compel
production of the Oasis Inn surveillance video, acknowledging that counsel’s own investigator had
contacted the owner of the Oasis Inn and had been able to obtain a copy of the security footage
from May 14, 2020, and that he had provided a copy of the footage to the State and Ottens. Further,
defense counsel stated that he had “reviewed that footage. It does not show anything of relevance
to this hearing. So, I have to withdraw my motion pursuant to my ethical obligations of
candidness.” The court granted trial counsel’s request to withdraw the motion. Accordingly, the
record refutes Ottens’ claim that the video establishes that he did not resist arrest and that trial
counsel was ineffective in failing to offer the surveillance video into evidence. This assignment of
error fails.
VI. CONCLUSION
For the reasons stated above, we affirm Ottens’ convictions and sentences.
AFFIRMED.
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