State v. Johnson , 308 Neb. 331 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/05/2021 08:10 AM CST
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. JOHNSON
Cite as 308 Neb. 331State of Nebraska, appellee, v. Thomas
E. Johnson, Jr., appellant.
___ N.W.2d ___
Filed February 5, 2021. No. S-19-1226.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a state-
ment based on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. Whether those facts meet con-
stitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
2. Identification Procedures: Due Process: Appeal and Error. A district
court’s conclusion whether an identification is consistent with due proc­
ess is reviewed de novo, but the court’s findings of historical fact are
reviewed for clear error.
3. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact
on the issue of insanity will not be disturbed unless there is insufficient
evidence to support such a finding.
4. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
6. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), pro-
hibits the use of statements derived during custodial interrogation unless
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STATE v. JOHNSON
Cite as 308 Neb. 331the prosecution demonstrates the use of procedural safeguards that are
effective to secure the privilege against self-incrimination.
7. ____: ____: ____. The safeguards provided by Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play
whenever a person in custody is subjected to either express questioning
or its functional equivalent.
8. ____: ____: ____. The safeguards of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), ensure that the individual’s
right to choose between speech and silence remains unfettered through-
out the interrogation process. If the suspect indicates that he or she
wishes to remain silent or that he or she wants an attorney, the interroga-
tion must cease.
9. Miranda Rights: Right to Counsel: Police Officers and Sheriffs:
Self-Incrimination. In order to require cessation of custodial interroga-
tion, the subject’s invocation of the right to counsel must be unambig­
uous and unequivocal.
10. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966), a “custodial interrogation” takes place when questioning is
initiated by law enforcement after a person has been taken into custody
or is otherwise deprived of his or her freedom of action in any signifi-
cant way.
11. ____: ____: ____. The term “interrogation” under Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), refers not only to
express questioning, but also to any words or actions on the part of the
police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating
response from the suspect.
12. ____: ____: ____. An objective standard is applied to determine whether
there is an interrogation within the meaning of Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
13. Identification Procedures: Due Process: Police Officers and Sheriffs.
When considering whether due process prohibits the admission of
an out-of-court identification at trial, the trial court must first decide
whether the police used an unnecessarily suggestive identification pro-
cedure. If they did, the court must next consider whether the improper
identification procedure so tainted the resulting identification as to ren-
der it unreliable and therefore inadmissible.
14. Constitutional Law: Identification Procedures: Due Process. The
Due Process Clause does not require a preliminary judicial inquiry into
the reliability of an eyewitness identification when the identification was
not procured under unnecessarily suggestive circumstances arranged by
law enforcement.
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STATE v. JOHNSON
Cite as 308 Neb. 33115. Trial: Identification Procedures: Police Officers and Sheriffs:
Motions to Suppress. Suppression of identification evidence on the
basis of undue suggestion is appropriate only where the witness’ ability
to make an accurate identification is outweighed by the corrupting effect
of improper police conduct. When no improper law enforcement activity
is involved, it suffices to test the reliability of identification testimony
at trial, through the rights and opportunities generally designed for that
purpose, such as the rights to counsel, compulsory process, and confron-
tation and cross-examination of witnesses.
16. Identification Procedures. A determination of impermissible sugges-
tiveness of an identification procedure is based on the totality of
the circumstances.
17. Criminal Law: Insanity: Proof. Generally, under Nebraska’s common-
law definition, the insanity defense requires proof that (1) the defendant
had a mental disease or defect at the time of the crime and (2) the
defend­ant did not know or understand the nature and consequences of
his or her actions or that he or she did not know the difference between
right and wrong.
18. ____: ____: ____. Under Neb. Rev. Stat. § 29-2203(1) (Reissue 2016),
the defendant carries the burden to prove the insanity defense by a pre-
ponderance of the evidence.
19. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
20. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
21. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Allyson A. Mendoza for appellant.
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STATE v. JOHNSON
Cite as 308 Neb. 331Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Thomas E. Johnson, Jr., appeals his convictions and sen-
tences in the district court for Douglas County for five counts
of robbery, five counts of use of a weapon (not a firearm) to
commit a felony, one count of assault in the second degree,
and one count of attempted escape. Johnson claims on appeal
that the district court erred when it overruled his motion to
suppress statements he made while in custody and evidence of
witness identifications from the photographic lineups (photo
lineups), when it found that he had not proved his defense of
insanity, and when it imposed excessive sentences. We reject
each of Johnson’s assignments of error, and we therefore affirm
Johnson’s convictions and sentences.
STATEMENT OF FACTS
Between June 15 and 21, 2015, a string of robberies took
place at five different businesses in Omaha, Nebraska. Each
robbery involved a knife being used to threaten the victim, and
victims in all the robberies gave descriptions of the assailant
that were similar in terms of race, age, height, weight, and
hair. Three of the five robberies occurred when the victim
was alone; in one robbery, there were two other individuals
present; and in the final robbery, two employees were robbed.
In most of the robberies, the assailant used the knife only to
threaten the victims, but in one robbery, a struggle ensued and
the assailant stabbed the victim in the upper arm, shoulder,
and neck several times. During the struggle, the victim bit the
assailant’s hand.
Surveillance video from the robbery in which the victim
had been stabbed was released to local media. Johnson’s
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STATE v. JOHNSON
Cite as 308 Neb. 331stepdaughter contacted police to report that her son had seen
the surveillance video on television and recognized Johnson
as the suspect. She also reported that she had seen bite marks
on Johnson’s hand, which was consistent with reports that the
stabbing victim had bitten the suspect’s hand in the struggle.
At approximately 7 a.m. on June 23, 2015, police officers went
to the home that family members shared with Johnson. After
officers spoke with family members, Johnson’s wife directed
them to where Johnson was sleeping. Officers woke Johnson
and observed that he matched the physical description of the
suspect and that he had bite marks on his hand.
Police officers took Johnson into custody and transported
him to police headquarters to be interviewed by Det. Jon
Martin, who was investigating the string of robberies. After
Martin read Johnson his Miranda rights, Johnson agreed to
speak with Martin. Johnson generally denied being involved
in the robberies, and he asserted that he had injured his hand
doing yardwork. Johnson acknowledged that the person shown
in a photograph taken from the surveillance video looked
like him.
Martin created a photo lineup that included a photograph of
Johnson and photographs of five other men who fit Johnson’s
general description. While Johnson was being interviewed
by Martin, another officer went to various locations to meet
with witnesses from four of the five robberies. The officer
administered photo lineups to six witnesses who all identified
Johnson as the person who committed the robberies. The two
victims in the fifth robbery spoke limited English and primar-
ily spoke Spanish. Therefore, on a later day, Martin accompa-
nied an officer who was fluent in Spanish to meet with the two
separately. The Spanish-speaking officer administered photo
lineups to those two victims, who both identified Johnson as
the robber.
After the officer who conducted the six photo lineups on
June 23, 2015, reported the identifications to Martin, Johnson
was arrested and transported from police headquarters to
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STATE v. JOHNSON
Cite as 308 Neb. 331jail. As Johnson was being removed from a police vehicle to
be taken into the jail, he ran from officers. The officers chased
after and caught Johnson.
On July 16, 2015, the State charged Johnson with five counts
of robbery and five counts of use of a weapon, not a firearm,
to commit a felony. The State also charged Johnson with one
count of assault in the second degree for the robbery in which
the victim was stabbed and with one count of attempted escape
for having run from officers when being taken to jail.
On February 10, 2016, based in part on a competency
evaluation completed by Dr. Bruce Gutnik, the district court
determined that Johnson was not competent to stand trial and
committed him to the Lincoln Regional Center (LRC) for
restoration of competency. On May 19, the court reviewed
a report by Dr. Farid Karimi, who was treating Johnson at
LRC, and determined that Johnson remained incompetent to
stand trial and should stay committed to LRC. On August 19,
based on a new report from Karimi, the court determined that
Johnson was then competent to stand trial, and Johnson was
returned to jail. However, Johnson later filed a new motion
to determine competency, and on October 6, after reviewing a
report by Gutnik, the court found that Johnson was no longer
competent to stand trial and should be recommitted to LRC for
restoration of competency. On May 5, 2017, the court found
Johnson competent to stand trial based on a report by Karimi,
and on May 16, Johnson filed notice pursuant to Neb. Rev.
Stat. § 29-2203 (Reissue 2016) that he intended to rely on a
defense of not responsible by reason of insanity.
Prior to trial, Johnson also moved to suppress certain evi-
dence. Johnson moved to suppress statements he made to
Martin while he was being held at police headquarters on the
morning of June 23, 2015. He alleged that the statements
were not freely and voluntarily given and were obtained in
violation of his constitutional rights. Johnson also moved to
suppress evidence of identifications made by witnesses based
on the photo lineups. He alleged that the procedures used by
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STATE v. JOHNSON
Cite as 308 Neb. 331officers to obtain the identifications were unduly suggestive
and prejudicial to his constitutional rights.
Martin testified at the suppression hearing regarding his
investigation of the robberies. Turning to the morning of June
23, 2015, Martin testified that he was informed that Johnson
was being brought to police headquarters by officers who had
responded to reports from Johnson’s family members. While
waiting for Johnson to be brought in, Martin retrieved infor-
mation regarding Johnson from the police computer system,
including photographs of Johnson. Martin noted that Johnson
fit the physical description of the suspect and that he “bore a
very strong resemblance to the party that [Martin] had observed
in the surveillance video” of one of the robberies. Martin used
police software to create a photo lineup that included a pho-
tograph of Johnson and photographs of five other individuals
with a similar appearance to Johnson’s in terms of “gender,
race, age, height and weight.”
Martin then met with Johnson in an interview room at
approximately 7:47 a.m. Martin began by obtaining general
biographical information from Johnson. After determining that
Johnson was responsive and did not appear to be suffering any
sort of medical condition or to be under the influence of nar-
cotics or alcohol, Martin read Johnson the police department’s
rights advisory form.
The court received into evidence at the suppression hear-
ing the completed rights advisory form, which indicated that
Johnson had been informed of his rights and that, knowing his
rights, he was willing to talk to Martin. The court also received
into evidence at the suppression hearing a video recording
of Martin’s interview and interactions with Johnson on June
23, 2015.
Martin testified that his interview of Johnson regarding the
robberies began at approximately 7:53 a.m. About 5 minutes
later, Johnson stated to Martin that the interview was over,
but Johnson continued talking for some minutes thereafter.
Martin testified that at approximately 8:03 a.m., Johnson stated
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STATE v. JOHNSON
Cite as 308 Neb. 331that Martin could speak with Johnson’s lawyer. Martin testified
that Johnson remained in the interview room until shortly after
noon but that Martin did not further interview Johnson during
that time. Martin testified that Johnson was alone in the room
most of that time other than during certain brief interactions.
Martin testified that at his request, police personnel entered the
room in order to photograph Johnson’s hand because Martin
had noted injuries which were consistent with bite marks that
were reported to have been sustained by the suspect in one of
the robberies. Martin testified that at one point, he brought
Johnson water and coffee and that at other times, other officers
had responded to Johnson’s requests to be taken to the bath-
room and to adjust the temperature in the room.
The video recording that was received into evidence at the
suppression hearing showed that at approximately 8:03 a.m.,
Johnson said he was done talking, and that Martin could con-
duct photo lineups or talk to Johnson’s lawyer or “whatever.”
The video recording shows that Martin stopped talking and
left the interview room shortly thereafter. However, Martin
returned to bring Johnson a drink at approximately 9:45 a.m.
When Johnson began asking about what the charges against
him would be, Martin left to get a notepad and returned shortly
thereafter. Martin and Johnson spoke for approximately 5 to
10 minutes. During that time, Martin informed Johnson of
potential charges and informed Johnson that police would be
obtaining a search warrant for Johnson’s residence. Martin did
not ask specific questions of Johnson, but Martin made state-
ments to Johnson to the effect that Martin was willing to listen
if Johnson wanted to explain what happened at the robberies.
Johnson continued to deny involvement, and Martin left the
room. Thereafter, at approximately 10:30 a.m., Johnson asked
other officers if he could talk to a lawyer. When Martin next
returned to the interview room, he informed Johnson that he
was being arrested and set forth the charges. Johnson asked if
they could talk more, but Martin said that they could not talk
because Johnson had told other officers that he wanted to talk
to a lawyer.
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STATE v. JOHNSON
Cite as 308 Neb. 331Martin also testified at the suppression hearing that during
the hours that Johnson spent in the interview room, another
police detective, Kerry Windels, was working on contacting
witnesses to four of the robberies in order to administer the
photo lineups that Martin had created. Martin testified that after
Windels reported that all the witnesses from those four robber-
ies had identified Johnson as the robber based on the photo
lineups, Johnson was arrested at approximately 12:15 p.m.
Martin and another detective transported Johnson from police
headquarters to jail to be booked on robbery and assault
charges. While they were moving Johnson from the vehicle to
the jail, Johnson ran out the doors of the jail garage and did
not respond to Martin’s verbal orders. Martin and the other
detective gave chase and caught Johnson a few feet outside the
garage door.
Martin further testified that on June 25, 2015, he and another
police officer, Sgt. Nick Yanez, met with the two victims of the
fifth robbery, who spoke limited English. Martin had created
a version of the photo lineup that included instructions and
questions in Spanish but included the same photographs as
the original English language version. Yanez administered the
photo lineups to the two witnesses at separate locations. When
Yanez administered the photo lineups, Martin was present but
“stepped several feet away.” Yanez reported to Martin that both
witnesses had identified Johnson as the robber.
On cross-examination, Johnson elicited from Martin testi-
mony that in July or August 2016, the Omaha Police Department
had changed its procedures for conducting photo lineups.
Martin testified that the changes included, inter alia, providing
each photograph on a separate page rather than including all
six photographs together on one page, showing a witness one
photograph at a time and asking the witness to make a decision
on each photograph before moving on to the next, and asking
a witness after an identification had been made to state his or
her level of certainty. Martin testified that the photo lineups in
this case were conducted under the prior procedures.
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Cite as 308 Neb. 331Windels and Yanez both testified at the suppression hearing.
Windels testified that on June 23, 2015, she administered photo
lineups to six witnesses. Windels testified that she had no part
in the creation of the photo lineups. Windels was not aware of
any specifics of the robberies that were being investigated and
was informed only of the locations in which she would find the
witnesses. Windels met with three of the six witnesses at loca-
tions different from the locations in which she met any other
witness. She met with three witnesses who were all witnesses
to one of the robberies at the same location, but she immedi-
ately told the three witnesses she would need to separate them
in order to administer the photo lineups. She told the witnesses
that they should not talk with one another about the robbery
or the identification of photographs. Windels administered a
photo lineup to each witness while that witness was in a room
with only Windels and the other witnesses were in a room in
which they could not see or hear what was occurring in the
room where the photo lineup was being administered. Windels
read the admonishment and questions provided on the photo
lineups to each of the six witnesses with whom she met, and
each of the six witnesses identified the photograph of Johnson
as depicting the robber.
Yanez testified that he was qualified to act as a Spanish lan-
guage translator. On June 25, 2015, Martin asked Yanez to
accompany him to speak with two witnesses and to conduct
photo lineups. Martin informed Yanez only that he was inves-
tigating a series of robberies and that the two witnesses spoke
little English. Yanez testified that the Spanish language admon-
ishment and questions provided on the photo lineups he admin-
istered included the same information used in the English lan-
guage photo lineups. Both witnesses identified the photograph
of Johnson as depicting the robber. Yanez testified that Martin
did not speak with the witnesses while Yanez was administer-
ing the photo lineups.
After the suppression hearing, the district court filed an
order in which it overruled Johnson’s motion to suppress as to
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Cite as 308 Neb. 331both his statements to Martin and evidence of the identifica-
tions from the photo lineups. Regarding Johnson’s statements
to Martin, the court found that after Martin read Johnson the
rights advisory, Johnson “readily waived” such rights and
agreed to talk with Martin. The court found no evidence to
indicate that Martin’s questions were not appropriate or to sup-
port a finding that Martin’s behavior or questioning was unduly
coercive. The court therefore found that the State had proved
that “Johnson’s statements and Miranda waiver were voluntary
and in no way a product of coercive questioning or methods
offensive to due process.” The court further found that when
Johnson invoked his right to counsel, Martin appropriately
stopped questioning him.
Regarding the witness identifications, the court determined
that the photo lineups in this case were not unduly sugges-
tive. The court found no evidence of improper suggestive
circumstances arranged by law enforcement. The court noted
that Johnson’s photograph did not stand out from the ­others
included in the photo lineups in any way and that neither
Windels nor Yanez encouraged the witnesses to choose one
photograph over another. The court further noted that neither
Windels nor Yanez knew which photograph depicted the sus-
pect or who the “‘target’” was. The court rejected Johnson’s
argument that the police department’s subsequent change in
its procedure for conducting photo lineups indicated that the
procedure used in this case was impermissibly suggestive. The
court found that there was “nothing fatal in the presentation
of the photo lineups” and that the procedure further protected
Johnson’s due process rights “by having law enforcement offi-
cers who knew nothing about the case and did not know the
identity of the ‘target’ administer all the lineups.”
Although it concluded that the photo lineups were not
unduly suggestive, the court further considered the indicators
of reliability of the identifications. The court noted that the
witnesses had identified Johnson in photo lineups “only days
after the robberies,” that each witness had “individualized con-
tact” with the robber for a period of minutes which included
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STATE v. JOHNSON
Cite as 308 Neb. 331“close contact” and “adequate lighting,” that the witnesses
“unequivocally identif[ied]” Johnson, and that there was no
indication of suggestiveness by the officers administering the
photo lineups. The court concluded that indicators of reliability
were sufficient to outweigh any improper suggestiveness.
Johnson waived a jury trial, and the matter was submitted to
the court in a stipulated bench trial. The State offered into evi-
dence various exhibits, including exhibits that had previously
been admitted at the suppression hearing. Johnson renewed the
objections he raised in his motion to suppress his statements
to Martin and evidence of the identifications from the photo
lineups. The court overruled the objection and allowed the
exhibits into evidence. In addition to the identifications and the
recording of the June 23, 2015, interview by Martin at police
headquarters that had been reoffered from the suppression
hearing, other evidence admitted for the bench trial included
police reports regarding the robberies, as well as surveillance
videos from two of the robberies. The court also admitted a
transcript of testimony by Martin, Windels, and Yanez from the
suppression hearing.
The court did not receive live testimony regarding the ele-
ments of the charged offense, but it did receive live testimony
regarding Johnson’s insanity defense. Johnson offered testi-
mony by Gutnik, and in response, the State called Karimi as
a witness. The court received into evidence reports by both
Gutnik and Karimi regarding their respective evaluations of
Johnson to determine his sanity or insanity at the time of the
charged offenses.
Gutnik testified regarding his education, training, and
experience as a psychiatrist. He testified that he had evalu-
ated Johnson four times. The first three times, in November
2015, September 2016, and April 2017, were to determine
Johnson’s competence to stand trial. The fourth time, in May
2017, was to determine his sanity or insanity at the time of
the alleged offenses. Gutnik’s reports from all four evalua­
tions were received into evidence. In connection with the
competency evaluations, Gutnik had diagnosed Johnson with
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STATE v. JOHNSON
Cite as 308 Neb. 331certain conditions, including schizoaffective disorder and post-­
traumatic stress disorder. In the first two evaluations, Gutnik
opined that Johnson was not competent to stand trial, and in
the third evaluation, Gutnik opined that Johnson was compe-
tent to stand trial.
After the court found Johnson competent to stand trial,
Gutnik conducted an evaluation on May 10, 2017, to determine
whether Johnson was sane or insane at the time of the alleged
offenses. During Gutnik’s interview of Johnson for the sanity
evaluation, Johnson told Gutnik that at the time of the offenses,
he had been hearing a voice in his head which was that of a
pirate named “Pablo.” Johnson told Gutnik that “Pablo” asked
him to find buried treasure and threatened to kill him and his
family if he did not comply with the request. Johnson told
Gutnik that he had retrieved buried treasure from various loca-
tions at the direction of “Pablo” and that he carried a knife
when retrieving treasure. Johnson told Gutnik that he had both
auditory and visual hallucinations on a daily basis but that their
occurrence had decreased.
In his report following the May 2017 evaluation, Gutnik
opined that Johnson was psychotic at the time of the alleged
crimes. He further opined that as a result of his condition,
Johnson was unable to determine the rightness or wrongness of
his actions, that he was unable to understand the consequences
of his behavior, and that he did not understand the nature and
quality of his actions. Gutnik stated that Johnson was delu-
sional and thought that he was a pirate who was forced to
find treasure because voices had threatened him and his fam-
ily. Gutnik concluded that in his opinion, within a reasonable
degree of medical certainty, Johnson was insane at the time of
the alleged crimes.
The State called Karimi to testify in response to Johnson’s
insanity defense. Karimi testified regarding his education, train-
ing, and experience as a psychiatrist. He testified that he had
been employed as a forensic psychiatric at LRC while Johnson
was committed to the facility and that he had opportu-
nity to evaluate Johnson during that time. Karimi testified
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Cite as 308 Neb. 331regarding evaluations he had completed in 2016 to determine
Johnson’s competence to stand trial. In his May 2016 report,
Karimi determined that Johnson was not competent, but Karimi
noted a possibility of malingering by Johnson and stated that
there was a good possibility that Johnson’s competency would
be restored in the near future. In June 2016, Karimi completed
a report opining that Johnson was then competent to stand trial.
Based on Karimi’s June 2016 report, the court found Johnson
competent to stand trial and ordered him moved from LRC to
jail. However, Johnson was recommitted to LRC after the court
in October 2016 found, based on Gutnik’s report, that Johnson
was again not competent to stand trial. Karimi testified at trial
regarding Johnson’s treatment during his time at LRC and
efforts that were taken at LRC to restore his competence.
Karimi also testified regarding his evaluation and report in
March 2017, which led the court to determine that Johnson
was again competent to stand trial. In the report, Karimi diag-
nosed Johnson as malingering. Karimi based this diagnosis on
testing, as well as his own interactions and experiences with
Johnson and the observations of other staff and professionals at
LRC. Karimi noted in particular that no changes in Johnson’s
conditions had been observed after LRC discontinued his anti­
psychotic medication.
Karimi also testified regarding his October 2017 report in
which he concluded that Johnson did not qualify for an insan-
ity defense at the time of the offenses. Based on his experi-
ence with Johnson at LRC and his diagnosis of Johnson as
malingering, Karimi opined that Johnson was faking symptoms
of psychosis and had made up the story of the pirate named
“Pablo” and buried treasure. Karimi opined that it was pos-
sible that at the time of the offenses, Johnson may have been
under the influence of drugs which would have given rise to
hallucination and delusions, but Karimi noted that a tempo-
rary condition caused by ingestion of drugs would not qualify
under the legal standard for insanity. Karimi also allowed that
Johnson may have been suffering depression at the time of
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STATE v. JOHNSON
Cite as 308 Neb. 331the offenses, but Karimi stated that depression would not have
impaired Johnson’s mental capacity to the point that he did
not understand the nature and consequences of his actions or
did not know the difference between right and wrong. Karimi
noted that Johnson’s behavior at the time of the offenses indi-
cated that he knew that what he was doing was wrong and that
he attempted to avoid punishment.
After testimony was completed, the parties submitted writ-
ten arguments to the district court. The court announced its
verdict in court on October 22, 2019, and filed a written order
that same day. The court found that the State had proved each
element of the charged offenses beyond a reasonable doubt.
The court then considered Johnson’s defense that he was insane
at the time he committed the offenses. The court set forth
the elements of an insanity defense and noted that Johnson
had the burden to prove the defense. The court stated that it
had heard testimony by Gutnik and Karimi, whose respective
professional opinions “diverge[d] drastically” with regard to
whether Johnson suffered from a mental illness and whether
he was not responsible by reason of insanity. The court found
both Gutnik and Karimi to be credible witnesses; however,
the court found Karimi’s methodology and his diagnosis of
Johnson as malingering to be more accurate and reliable than
Gutnik’s opinion. The court noted that Gutnik had met with
Johnson a total of four times, whereas Karimi and his team of
professionals at LRC had “spent years living with . . . Johnson
and had more of an opportunity to observe him and study his
behaviors.” The court therefore accorded greater weight to
Karimi’s testimony and the conclusions set forth in Karimi’s
reports on Johnson’s competency and his sanity at the time
of the offenses. The court particularly noted that LRC had
not observed any bizarre behaviors or indication of hallucina-
tions after staff stopped giving Johnson antipsychotic medica-
tion without informing Johnson they were discontinuing the
medication. The court noted this evidence, as well as testing
which indicated that Johnson was intentionally exaggerating
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Cite as 308 Neb. 331his symptoms and wanted to stay at LRC. The court noted with
favor Karimi’s conclusion, in short, that either Johnson was
“completely faking his psychotic symptomology” or, alterna-
tively, “at the time of his criminal offenses he could have been
high on PCP that could have caused very vivid hallucinations
and delusions.” The court concluded that the evidence showed
that Johnson was malingering, and the court further found that
Johnson failed to prove that he was legally insane at the time
of the commission of the offenses. The court therefore found
Johnson guilty of all the charged offenses.
The court thereafter held a sentencing hearing at which it
considered the presentence investigation, as well as arguments
by Johnson and the State. Johnson argued that although the
court had rejected his insanity defense, the evidence related to
his competence and sanity identified mental health issues and
cognitive deficits, as well as the possibility that he was under
the influence of drugs at the time of the offenses and that these
should be considered as mitigating factors in his sentencing.
Johnson urged sentencing that would allow him an opportunity
for rehabilitation. The court determined that Johnson was not
an appropriate candidate for probation and therefore imposed
sentences of imprisonment. The court sentenced Johnson to
imprisonment for 35 to 40 years for each of the five convictions
for robbery and for 1 to 2 years for each of the five convictions
for use of a weapon. The court ordered that the five sentences
for robbery be served concurrently with one another, and it
ordered that the five sentences for use of a weapon be served
consecutively to the sentences for the underlying felonies and
to one another. The court sentenced Johnson to imprisonment
for 19 to 20 years for the second degree assault conviction
and ordered that the sentence be served concurrently with the
sentences for the robbery convictions. On the attempted escape
conviction, the court originally sentenced Johnson based on
sentencing statutes in effect at the time of sentencing. The
court later corrected its error because the original sentence was
outside the range set forth in the sentencing statutes in effect at
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Cite as 308 Neb. 331the time of the offense. The court sentenced Johnson to impris-
onment for 20 months to 5 years for the attempted escape con-
viction and ordered that the sentence be served concurrently
with the sentences for robbery and the sentence for second
degree assault.
Johnson appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Johnson claims that the district court erred when it (1) over-
ruled his motion to suppress statements that he made to Martin,
(2) overruled his motion to suppress evidence of the identifica-
tions from the photo lineups, (3) found he had not proved the
insanity defense, and (4) imposed excessive sentences.
STANDARDS OF REVIEW
[1] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies
a two-part standard of review. Regarding historical facts, an
appellate court reviews the trial court’s findings for clear error.
Whether those facts meet constitutional standards, however, is
a question of law, which an appellate court reviews indepen-
dently of the trial court’s determination. State v. Connelly, 307
Neb. 495, 949 N.W.2d 519 (2020).
[2] A district court’s conclusion whether an identification
is consistent with due process is reviewed de novo, but the
court’s findings of historical fact are reviewed for clear error.
State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).
[3] The verdict of the finder of fact on the issue of insan-
ity will not be disturbed unless there is insufficient evidence
to support such a finding. State v. Stack, 307 Neb. 773, 950
N.W.2d 611 (2020).
[4,5] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
statutory limits. State v. Senteney, 307 Neb. 702, 950 N.W.2d
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Cite as 308 Neb. 331585 (2020). An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Id.ANALYSIS
Johnson’s first two assignments of error relate to evidence
admitted at the stipulated bench trial over his renewed objec-
tions based on issues raised in his motion to suppress. We
note as a preliminary matter that sufficiency of the evidence
to convict is relevant even when the defendant has asserted
an insanity defense. See State v. Stack, supra (considering
both assignment of error that evidence was not sufficient to
support conviction and assignment of error that there was not
sufficient evidence to conclude that defendant was not legally
insane). We have stated that “[i]t is well settled that when a
defendant pleads insanity and offers evidence on that issue, the
plea is an implicit, although not legally operative, admission of
the State’s charges.” State v. Urbano, 256 Neb. 194, 203, 589
N.W.2d 144, 152 (1999) (citing State v. Vosler, 216 Neb. 461,
345 N.W.2d 806 (1984)). Because the plea of insanity is not a
legally operative admission of the charges, the State still must
prove the elements of the charged offenses. Therefore, issues
regarding the admission of evidence to prove the elements of
the charged offenses are relevant even when the defendant has
asserted an insanity defense.
District Court Did Not Err When It Overruled
Johnson’s Motion to Suppress Evidence
of Johnson’s Custodial Statements.
Johnson first claims that the district court erred when it
overruled his motion to suppress statements he made to Martin
while in custody prior to his arrest. He argues that Martin
continued to interrogate him after he had unambiguously
invoked his right to counsel and that the district court erred
when it found that Martin stopped questioning him after he
requested counsel. We determine that the interrogation was not
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Cite as 308 Neb. 331in violation of Miranda safeguards, and we conclude that the
district court did not err when it overruled Johnson’s motion to
suppress and allowed the statements into evidence.
[6,7] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), prohibits the use of statements derived dur-
ing custodial interrogation unless the prosecution demonstrates
the use of procedural safeguards that are effective to secure
the privilege against self-incrimination. State v. Connelly, 307
Neb. 495, 949 N.W.2d 519 (2020). The Miranda safeguards
come into play whenever a person in custody is subjected to
either express questioning or its functional equivalent. State v.
Connelly, supra.[8,9] The Miranda safeguards ensure that the individual’s
right to choose between speech and silence remains unfettered
throughout the interrogation process. State v. Said, 306 Neb.
314, 945 N.W.2d 152 (2020). If the suspect indicates that he or
she wishes to remain silent or that he or she wants an attorney,
the interrogation must cease. Id. In order to require cessation of
custodial interrogation, the subject’s invocation of the right to
counsel must be unambiguous and unequivocal. Id.There is no dispute that at the beginning of the interroga-
tion on June 23, 2015, at approximately 7:52 a.m., Martin read
the Miranda advisory to Johnson, and that Johnson waived
his rights. However, Johnson argues that he unambiguously
invoked his right to counsel at 8:03 a.m., when he told Martin,
“you can talk to my lawyer.” Johnson contends that the district
court agreed this was the point when he invoked his right to
counsel and that it erroneously concluded Martin stopped inter-
rogating Johnson after his invocation of the right to counsel.
Johnson notes that although Martin temporarily stopped ques-
tioning him, Martin returned at around 9:45 a.m. and continued
the interrogation by attempting to get him to admit that he had
committed the robberies.
[10-12] We agree with Johnson to the extent that he con-
tends that Martin continued the interrogation after 9:45 a.m.
We have stated that under the Miranda rule, a “custodial
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Cite as 308 Neb. 331interrogation” takes place when questioning is initiated by
law enforcement after a person has been taken into custody or
is otherwise deprived of his or her freedom of action in any
significant way. State v. Connelly, supra. We have also stated
that the term “interrogation” under Miranda v. Arizona, supra,refers not only to express questioning, but also to any words
or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from
the suspect. Id. An objective standard is applied to deter-
mine whether there is an interrogation within the meaning of
Miranda v. Arizona, supra. State v. Connelly, supra.After Martin resumed speaking with Johnson at approxi-
mately 9:45 a.m., he did not explicitly ask Johnson questions
about the robberies. However, Martin told Johnson that police
were getting a search warrant, and he made statements to
Johnson to the effect that this was Johnson’s chance to explain
what had happened at each robbery. We think that such state-
ments, in the context of telling Johnson that police were gath-
ering evidence against him, were words that were “reasonably
likely to elicit an incriminating response from the suspect” and
therefore would be considered “‘interrogation’” for purposes
of Miranda safeguards. See State v. Connelly, 307 Neb. at 505,
949 N.W.2d at 527.
Although we agree with Johnson that Martin continued the
interrogation after 9:45 a.m., we do not agree that this inter-
rogation occurred after Johnson had unambiguously invoked
his right to counsel. Johnson asserts the invocation occurred
at 8:03 a.m., when he told Martin that the conversation was
over and that Martin could put him in a photo lineup, or talk to
Johnson’s lawyer, or “whatever.” We do not read this statement
as an unambiguous invocation of the right to counsel.
The right to counsel was described in the Miranda advisory
that was signed by Johnson as “the right to consult with a
lawyer and have the lawyer with [him] during the questioning”
and for the court to appoint a lawyer if he could not afford
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Cite as 308 Neb. 331one. This is consistent with case law in which we have said
that a similar advisement was “sufficient to convey to the
defendant his right to counsel during the questioning even if he
could not afford one, and sufficient to convey the consequences
of forgoing that right.” State v. Burries, 297 Neb. 367, 390-91,
900 N.W.2d 483, 504-05 (2017) (citing Patterson v. Illinois,
487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988)).
Because the focus of the right to counsel is the defend­ant’s
right to consult with counsel and have counsel present for
questioning of the defendant, Johnson’s statement that Martin
could talk to Johnson’s lawyer was not an unambiguous invo-
cation of Johnson’s right to counsel. Johnson did not say that
he wanted to have a lawyer appointed or to consult with a
lawyer or to have a lawyer present for the questioning. Instead,
he told Martin that Martin could talk to his lawyer. Although it
is possible Johnson’s statement could be interpreted as stating
that he only wanted to talk through his lawyer, the statement
was not an unambiguous statement of such intent. That is par-
ticularly true when considered in context, because in the same
sentence, Johnson said Martin could conduct a photo lineup or
talk to Johnson’s lawyer or “whatever.” Thus, it was more an
expression of what Martin could do than an expression of what
Johnson wanted to do.
We note that before Martin told Johnson after 9:45 a.m. that
he would listen if Johnson wanted to explain what happened
in the robberies, Martin reminded Johnson of the Miranda
advisory and ensured Johnson understood those rights were
still in effect. We further note that Martin stopped the resumed
interrogation within approximately 10 minutes because Johnson
continued to deny involvement. After that time, at around
10:30 a.m., Johnson told officers other than Martin that he
wanted to speak with a lawyer. Johnson’s statements at that
point were unambiguous invocations of the right to counsel.
The next time Martin spoke to Johnson after that, Martin’s
purpose was to advise Johnson both that he was being arrested
and of the nature of the charges against him. When Johnson
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Cite as 308 Neb. 331asked Martin whether they could talk more, Martin appropri-
ately responded that he could no longer speak about the rob-
beries, because Johnson had told other officers that he wanted
to speak with a lawyer.
We acknowledge, as Johnson asserts, that given the dis-
trict court’s narrative concerning the conversation, the district
court’s suppression order can be read as finding that Johnson
invoked his right to counsel at 8:03 a.m. However, when the
court made its findings, it simply stated that when “Johnson
invoked his right to counsel . . . Martin appropriately stopped
questioning . . . Johnson.” The court did not specify in its
order a finding of the time when Johnson invoked his right of
counsel. Under our standard of review, we review findings of
fact for clear error and review independently the determina-
tion whether constitutional standards were met. See State v.
Connelly, 307 Neb. 495, 949 N.W.2d 519 (2020). We there-
fore review independently the district court’s determination
that Martin stopped questioning Johnson after Johnson unam-
biguously invoked his right to counsel. The record shows that
Johnson did not unambiguously invoke his right to counsel
until approximately 10:30 a.m. and that Martin did not there­
after continue the interrogation.
We therefore conclude that the district court did not err when
it concluded that the interrogation did not violate Miranda
safeguards and when it therefore overruled the motion to sup-
press statements Johnson made to Martin on June 23, 2015. We
reject this assignment of error.
District Court Did Not Err When It Overruled
Johnson’s Motion to Suppress Evidence of the
Identifications From the Photo Lineups.
Johnson next claims that the district court erred when it
overruled his motion to suppress evidence of the witness iden-
tifications from the photo lineups. He argues that the identifica-
tions were irreparably tainted by unduly suggestive procedures
used in conducting the photo lineups. We conclude that the
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Cite as 308 Neb. 331court did not err when it admitted evidence of the witness
­identifications from the photo lineups.
[13] The U.S. Supreme Court has stated a two-part test for
determining whether due process prohibits the admission of
an out-of-court identification at trial: “‘First, the trial court
must decide whether the police used an unnecessarily sugges-
tive identification procedure. . . . If they did, the court must
next consider whether the improper identification procedure
so tainted the resulting identification as to render it unreliable
and therefore inadmissible.’” See State v. Newman, 290 Neb.
572, 579, 861 N.W.2d 123, 131-32 (2015) (quoting Perry v.
New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 181 L. Ed. 2d
694 (2012)).
[14,15] The Due Process Clause does not require a pre-
liminary judicial inquiry into the reliability of an eyewit-
ness identification when the identification was not procured
under unnecessarily suggestive circumstances arranged by law
enforcement. State v. Pope, 305 Neb. 912, 943 N.W.2d 294(2020). Suppression of identification evidence on the basis of
undue suggestion is appropriate only where the witness’ abil-
ity to make an accurate identification is outweighed by the
corrupting effect of improper police conduct. Id. When no
improper law enforcement activity is involved, it suffices to
test the reliability of identification testimony at trial, through
the rights and opportunities generally designed for that pur-
pose, such as the rights to counsel, compulsory process, and
confrontation and cross-examination of witnesses. Id.[16] A determination of impermissible suggestiveness of
an identification procedure is based on the totality of the
circumstances. State v. Newman, supra. Under the totality of
the circumstances in this case, the district court found that
the photo lineups in this case were not unduly suggestive. The
court found no evidence of improper suggestive circumstances
arranged by law enforcement and noted that Johnson’s photo-
graph did not stand out from the others included in the photo
lineups, that the officers conducting the photo lineups did
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Cite as 308 Neb. 331not encourage the witnesses to choose one photograph over
another, and that the officers did not know which photograph
depicted the suspect or who the “‘target’” was.
In our de novo review, we determine that the district court’s
findings are not clearly erroneous. We also agree with the dis-
trict court’s reasoning that the police department’s subsequent
change in its procedure for conducting photo lineups did not
indicate that the procedure used in this case was impermis­
sibly suggestive. The fact that the police department later made
changes to improve its procedure and to comply with newly
enacted law does not invalidate prior photo lineups that were
not otherwise impermissibly suggestive. We conclude that the
photo lineups were not unduly suggestive and were consistent
with due process.
Because there is no evidence that the identifications were pro-
cured under unnecessarily suggestive circumstances arranged
by law enforcement, there was no need for a preliminary judi-
cial inquiry into the reliability of the witnesses’ identifications.
State v. Pope, supra. We therefore need not review the district
court’s further determination that indicators of reliability of
the witness identifications were sufficient to outweigh any
improper suggestiveness.
We conclude that the district court did not err when it over-
ruled the motion to suppress the witness identification evidence
and when it admitted the evidence at trial. We therefore reject
this assignment of error.
There Was Sufficient Evidence to Support the
District Court’s Finding That Johnson
Failed to Prove Insanity Defense.
Johnson next claims that the district court erred when it
rejected his insanity defense. He generally argues that Gutnik’s
testimony was more credible and should have been given
greater weight than Karimi’s testimony. We conclude that
there was sufficient evidence to support the district court’s
finding that Johnson was not insane at the time he committed
the offenses.
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Cite as 308 Neb. 331[17,18] Generally, under Nebraska’s common-law defini-
tion, the insanity defense requires proof that (1) the defendant
had a mental disease or defect at the time of the crime and
(2) the defendant did not know or understand the nature and
consequences of his or her actions or that he or she did not
know the difference between right and wrong. State v. Stack,
307 Neb. 773, 950 N.W.2d 611 (2020). The defendant carries
the burden to prove the insanity defense by a preponderance
of the evidence. See § 29-2203(1). The verdict of the finder
of fact on the issue of insanity will not be disturbed unless
there is insufficient evidence to support such a finding. State
v. Stack, supra.Both Johnson and the State presented testimony by their
respective experts regarding the issue of Johnson’s sanity at
the time of the offenses. Johnson presented the testimony of
Gutnik, who generally opined that Johnson was psychotic at
the time of the alleged crimes and that as a result of his condi-
tion, Johnson was unable to determine the rightness or wrong-
ness of his actions, was unable to understand the consequences
of his behavior, and did not understand the nature and quality
of his actions. Gutnik concluded that Johnson was insane at
the time of the alleged crimes. In response, the State called
Karimi, who generally opined that Johnson was faking symp-
toms of psychosis and that at the time of the offenses, he was
not suffering any condition that would have impaired his men-
tal capacity to the point that he did not understand the nature
and consequences of his actions or did not know the difference
between right and wrong. Karimi allowed that Johnson may
have been “using PCP” at the time of the offenses but noted
that a temporary condition caused by ingestion of drugs would
not qualify under the legal standard for insanity.
Johnson generally argues on appeal that Gutnik’s opinion
established that he was insane at the time of the offenses,
because his testimony was credible and his opinion ­regarding
insanity was consistent with prior evaluations Gutnik per-
formed in order to determine Johnson’s competence to stand
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Cite as 308 Neb. 331trial. Johnson generally argues that Karimi’s opinion and
testimony were less credible because they were inconsistent
with Johnson’s extensively documented mental health history.
Johnson further asserts Karimi’s testimony was affected by bias
he developed while treating Johnson and an ingrained belief
that Johnson was malingering. Johnson cites other factors that
he argues affected Karimi’s credibility. Johnson concludes that
Gutnik’s opinion established legal insanity and that Karimi’s
testimony did not credibly rebut that finding.
In the order announcing its verdict in this case, the district
court thoroughly discussed its finding that Johnson was not
legally insane at the time of the offenses. The court found
both Gutnik and Karimi to be credible witnesses, although
their respective professional opinions “diverge[d] drastically”
with regard to whether Johnson suffered from a mental ill-
ness and whether he was not responsible by reason of insan-
ity. The court, however, accorded greater weight to Karimi’s
opinion because it found Karimi’s methodology and his diag-
nosis of Johnson as malingering to be more accurate and
reliable than Gutnik’s opinion. The court therefore found that
Johnson failed to prove by the greater weight of the evidence
that he was legally insane at the time of the commission of
the offenses.
The opinions of Gutnik and of Karimi on the issue of legal
insanity were in direct conflict with one another, and it was
the province of the district court as the fact finder in this
bench trial to resolve that conflict. See State v. Stack, supra(stating appellate court does not resolve conflicts in evidence,
pass on credibility of witnesses, or reweigh evidence; such
matters are for finder of fact). While the court found both
Gutnik and Karimi to be credible witnesses, the court as fact
finder accorded greater weight to Karimi’s opinion, and in its
order, the court explained its reasoning for how it resolved the
conflict in professional opinions. Because it was the district
court’s province to determine credibility, resolve conflicts, and
weigh the evidence, we as an appellate court consider only
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Cite as 308 Neb. 331whether there was sufficient evidence to support the finding
of the court as fact finder. Given the opinions and reasoning
set forth by Karimi, the record contained sufficient evidence
for the district court to conclude that Johnson was not legally
insane at the time of the offenses.
We conclude that there was sufficient evidence to sup-
port the district court’s finding regarding Johnson’s insanity
defense. We therefore reject this assignment of error.
District Court Did Not Abuse Its Discretion
When Imposing Sentences.
Johnson finally claims that the district court imposed exces-
sive sentences. He argues that the court did not adequately
consider relevant mitigating factors. We find no abuse of dis-
cretion in the sentencing, and we therefore reject this claim.
Johnson was convicted of five counts of robbery, Class II
felonies under Neb. Rev. Stat. § 28-324(2) (Reissue 2016); five
counts of use of a deadly weapon other than a firearm to commit
a felony, Class II felonies under Neb. Rev. Stat. § 28-1205(1)(b)
(Reissue 2016); one count of second degree assault, a Class III
felony under Neb. Rev. Stat. § 28-309(2) (Cum. Supp. 2014) at
the time of the offense; and one count of attempted escape, a
Class IV felony under Neb. Rev. Stat. § 28-912(5)(a) (Reissue
2008) and Neb. Rev. Stat. § 28-201(4)(d) (Cum. Supp. 2014).
The offenses were committed between June 15 and 23, 2015,
prior to the August 30 effective date of 2015 Neb. Laws, L.B.
605, and therefore, changes made by that amendment do not
apply to these offenses. See Neb. Rev. Stat. § 28-105(8) (Supp.
2015). At the time of the offenses, the sentencing range for a
Class II felony was imprisonment for 1 to 50 years; for a Class
III felony was imprisonment for 1 to 20 years, a $25,000 fine,
or both; and for a Class IV felony was imprisonment for a
maximum of 5 years, a $10,000 fine, or both. § 28-105 (Cum.
Supp. 2014). The robbery and weapon convictions were Class
II felonies, and the district court sentenced Johnson to impris-
onment for 35 to 40 years for each of the robberies and for
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Cite as 308 Neb. 3311 to 2 years for each of the weapon convictions. The second
degree assault conviction was for a Class III felony, and the
district court sentenced Johnson to imprisonment for 19 to 20
years. The attempted assault conviction was for a Class IV
felony, and the district court sentenced Johnson to imprison-
ment for 20 months to 5 years. The court ordered all of the
sentences to be served concurrently with one another except for
the sentences for the weapon convictions, which, as required
by § 28-1205(3), the court ordered to be served consecutively
to one another and to all the other sentences imposed.
[19] The sentences imposed by the court were therefore
within statutory limits. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appel-
late court must determine whether a sentencing court abused its
discretion in considering and applying the relevant factors as
well as any applicable legal principles in determining the sen-
tence to be imposed. State v. Price, 306 Neb. 38, 944 N.W.2d
279 (2020). We therefore consider whether the court abused its
discretion when it imposed those sentences.
[20,21] Johnson argues that the district court abused its
discretion when it sentenced him because it did not adequately
consider relevant mitigating factors. In determining a sentence
to be imposed, relevant factors customarily considered and
applied are the defendant’s (1) age, (2) mentality, (3) educa-
tion and experience, (4) social and cultural background, (5)
past criminal record or record of law abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defendant’s
life. Id.Johnson argues specifically that the court failed to ade-
quately consider his social background, education, and mental-
ity when it imposed sentences of imprisonment for a total of
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Cite as 308 Neb. 33140 to 50 years. He asserts that the record is replete with evi-
dence of his extensive history of substance abuse, as well as
a history of being a victim of verbal, physical, and sexual
abuse since his childhood. He argues that these experiences
had a profound impact on his development and his long his-
tory of mental illness, which is also documented in the record.
Johnson further notes evidence that he attended special educa-
tion classes and that he had an estimated IQ of 73 and showed
significant cognitive impairment. Johnson argues that these
factors rendered him vulnerable to making poor decisions and
that the lengthy total sentence imposed by the court depreci-
ated the recognition that his mental health and substance abuse
issues required rehabilitative measures. Johnson asserts that
these mitigating factors warrant a lesser sentence.
The record indicates that Johnson made similar arguments
at the sentencing hearing and that there was evidence in the
record for the court to be aware of the mitigating factors
asserted. At the sentencing hearing, the district court stated
that it had considered relevant factors including, as relevant to
Johnson’s excessive sentence arguments, Johnson’s “mental-
ity, education and experience, [and] social and cultural back-
ground.” But the court also considered other relevant factors,
including Johnson’s “past criminal record [and] motivation for
the offense[s], the nature of the offense[s,] and the violence
involved in the commission of the offenses.” Although the
court did not extensively discuss its reasoning or its consid-
eration of these factors, as the State notes, the record shows
factors that support the sentences imposed, including testing
that showed a high to very high risk to reoffend and a crimi-
nal history that included several robberies and burglaries that
occurred prior to the series of robberies that gave rise to the
present case.
We further note that while the sentences imposed for the
robberies, the second degree assault, and the attempted escape
were toward the top of the statutory ranges, the court lessened
the severity of the sentencing by ordering these sentences to
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Cite as 308 Neb. 331be served concurrently rather than consecutively. Furthermore,
with regard to the sentences for the weapons convictions,
which were statutorily required to be served consecutively to
one another and to the other sentences, the court imposed sen-
tences of imprisonment of 1 to 2 years when the permissible
maximum term of imprisonment was 50 years. By imposing
short sentences for these convictions, which are required to be
served consecutively to other sentences, the court significantly
lessened the potential total term of imprisonment. Considering
all the relevant factors and all the sentences imposed in this
case, we think the sentences imposed were justified.
We conclude that the sentences imposed by the district
court were not an abuse of discretion, and we therefore reject
Johnson’s claim that the district court imposed excessive
sentences.
CONCLUSION
We conclude that the district court did not err when it over-
ruled Johnson’s motion to suppress evidence of his statements
to police and of the identifications from the photo lineups.
We further conclude that the court did not err when it found
that Johnson had not proved the insanity defense. We finally
conclude that the court did not abuse its discretion in sen-
tencing Johnson. We therefore affirm Johnson’s convictions
and sentences.
Affirmed.