State v. Aldaco, S-05-587.

Citation271 Neb. 160,710 N.W.2d 101
Decision Date03 March 2006
Docket NumberNo. S-05-587.,S-05-587.
PartiesSTATE of Nebraska, appellee, v. Samson ALDACO, appellant.
CourtSupreme Court of Nebraska
710 N.W.2d 101
271 Neb. 160
STATE of Nebraska, appellee,
Samson ALDACO, appellant.
No. S-05-587.
Supreme Court of Nebraska.
March 3, 2006.

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Mark A. Weber and Kylie A. Wolf, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.

Jon Bruning, Attorney General, Don Kleine, Omaha, and Michael W. Jensen for appellee.




Samson Aldaco was convicted of first degree murder, use of a deadly weapon to commit a felony, possession of a deadly weapon by a felon, and possession of a controlled substance for his actions on December 7, 2001. Aldaco was sentenced to life imprisonment for murder in the first degree, 10 years' imprisonment for use of a deadly weapon to commit a felony, 10 years' imprisonment for possession of a deadly weapon by a felon, and 1 year's imprisonment for possession of a controlled substance. We are presented with Aldaco's appeal of his convictions and sentences.


Testimony adduced at trial established that in December 2001, Aldaco contacted Enrique Ramirez, Paul Hernandez, Jacinto Martinez, and Ray Lara to accompany him from Garden City, Kansas, to Omaha, Nebraska, to collect money owed to him from his illegal drug business. Aldaco paid Hernandez, Martinez, and Lara each $200 for helping him.

On December 7, 2001, Ramirez, Hernandez, Martinez, and Lara met Aldaco at a hotel in Omaha, where Aldaco had reserved a room. Thereafter, the men drove to the residence of Dale Herman to collect money Herman owed Aldaco. Pursuant to Aldaco's instructions, each man carried either their own gun or a gun provided to him by Aldaco. Ramirez testified at trial that the men carried guns in an attempt to scare the individuals in the residence and take money from them. According to Aldaco's plan, Ramirez and Martinez entered the basement of the residence where Herman was staying, which was accessible only by a separate outside entrance, to see if Herman was there, and Aldaco and Hernandez entered the upstairs of the residence. Lara was supposed to be located outside the residence as a lookout.

Ramirez and Martinez both entered the basement brandishing their weapons. In the basement were six occupants, including Herman. Ramirez located Herman and, at gunpoint, took him upstairs to where Hernandez and Aldaco were located. Upon entering the upstairs of the residence,

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Herman was forced to the floor and a gun was held to his head. While he was lying on the floor, Herman was threatened and questioned regarding the money he owed Aldaco. Herman was also told that he "had until 2:00 the next day" to pay Aldaco $2,000.

While Ramirez was upstairs with Herman and Aldaco, Hernandez went to the basement where he brandished his weapon and ordered the remaining occupants to get on the floor face down. While the individuals were on the floor, Hernandez demanded their wallets, money, and drugs. Hernandez then took the wallets from the individuals, while Martinez provided coverage by pointing his and Hernandez' guns at the individuals.

At some point after the wallets were taken, Ramirez returned to the basement and found the occupants lying face down on the floor. After Ramirez returned to the basement, Hernandez left and Lara entered shortly thereafter. Upon entering the basement, Lara began yelling at the individuals on the floor, demanded their wallets, and kicked and pistol-whipped them as he patted them down. Stace Straw, one of the victims on the floor who was being patted down, began to struggle with Lara. During this altercation, Lara fatally shot Straw in the head.

After Lara shot Straw, the men left the residence and eventually met at a casino in Iowa, pursuant to Aldaco's instructions. After meeting in a hotel room reserved by Aldaco, Aldaco, Ramirez, and Hernandez left in Aldaco's vehicle to collect Aldaco's luggage from another hotel. On the way, Aldaco was pulled over by Omaha police for driving without his headlights illuminated. The officer was subsequently advised that the vehicle and occupants matched the description of the vehicle and individuals involved in an earlier shooting. After assistance arrived, officers conducted a high-risk felony stop and all three men in the vehicle were arrested. Upon searching the vehicle, officers found a Ruger 9-mm handgun, a Beretta .40-caliber handgun, and a Taurus 9-mm handgun. Officers also found a baggie containing a white, powdery substance which tested positive for 17.2 grams of methamphetamine and dimethyl sulfone.


The State filed an information charging Aldaco with murder in the first degree. Aldaco's attorney filed a motion to suppress. On the date the matter came on for hearing, Aldaco's attorney was granted leave to withdraw as counsel due to a conflict. Another attorney was then appointed to represent Aldaco, and the hearing on the motion to suppress was continued until further notice. Aldaco's new attorney filed motions to suppress the evidence obtained as a result of the stop and search of Aldaco's vehicle. Evidentiary hearings on the motions were concluded on March 21, 2003. At the conclusion of the proceedings, the parties were given the opportunity to submit briefs to the trial court and a trial date was set for June 2.

On April 18, 2003, Aldaco filed a pro se motion for discovery. On Aldaco's motion, the trial was continued until September 29. On August 21, the trial court entered an order overruling the motions to suppress. Aldaco filed a pro se notice of appeal of the denial of his motions to suppress. The trial court conducted a "status hearing," at which hearing it determined that since Aldaco had filed an appeal of the denial of his motions, the trial court was without jurisdiction to proceed to trial on the date scheduled. The Nebraska Court of Appeals dismissed Aldaco's appeal. See State v. Aldaco, 12 Neb.App. ___ (No. A-03-1028, Oct. 1, 2003).

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After the matter was remanded back to the trial court, a new trial date was set for January 5, 2004. During the pretrial conference, the trial court addressed the question of whether the requirement of a speedy trial had been conformed with and found that, for good cause, January 5 was the earliest the matter could be set for trial.

On January 2, 2004, Aldaco filed a motion to discharge on the ground that his right to a speedy trial had been violated. Aldaco's trial commenced on January 5. On that date, the court orally overruled Aldaco's motion to discharge, but did not enter a written order to that effect. The matter was then tried before a jury. During the cross-examination of a witness, Aldaco sought leave of the court to question a witness on his own. Aldaco was advised by the court that his attorney would decide what questions should be asked, and Aldaco then indicated to the court that he did not want to represent himself. At that point, Aldaco expressed for the first time his concern that his attorney had a conflict of interest as a result of his prior representation of the victim Straw's brother. Aldaco's attorney explained to the court that he had represented Straw's brother in connection with driving under suspension in a different matter which had been resolved and that he was not Straw's brother's attorney. Aldaco's attorney also explained that he had never had any dealings with Straw. Following a brief discussion on the matter, the trial court found that Aldaco had failed to show a conflict of interest.

The jury found Aldaco guilty of all charges. Aldaco filed a motion for new trial, and while the motion for new trial was still pending, Aldaco filed a pro se notice of appeal regarding the denial of his motion to discharge. This appeal was dismissed by the Court of Appeals for lack of a file-stamped order overruling the motion to discharge. See State v. Aldaco, 12 Neb. App. ___ (No. A-04-155, Mar. 18, 2004). Thereafter, the trial court entered an order dated April 28, 2004, overruling Aldaco's motion to discharge. Aldaco then filed an appeal of the trial court's April 28 order, which this court summarily affirmed. See State v. Aldaco, 269 Neb. ___ (No. S-04-645, Jan. 12, 2005). On April 12, 2005, Aldaco's sentencing hearing was held. At that time, the trial court orally overruled Aldaco's pending motion for new trial. The court then sentenced Aldaco to life imprisonment for murder in the first degree, 10 years' imprisonment for use of a deadly weapon to commit a felony, 10 years' imprisonment for possession of a deadly weapon by a felon, and 1 year's imprisonment for possession of a controlled substance. Counts I, III, and IV were ordered to be served concurrently, and count II was ordered to be served consecutively. Aldaco was given credit for 1,221 days previously served. On May 6, Aldaco filed the present appeal, and on May 11, the trial court entered an order overruling Aldaco's motion for new trial.


Aldaco assigns the following errors: (1) Aldaco was denied effective assistance of counsel, (2) Aldaco's conviction is not supported by the evidence, (3) the trial court erred in imposing excessive sentences, and (4) the trial court erred in overruling Aldaco's motion to discharge on speedy trial grounds.


The instant case presents four distinct issues with different standards of review. We, therefore, set forth the appropriate standard of review in the individual sections of our analysis.

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In his first assignment of error, Aldaco claims the trial court erred in finding that Aldaco's defense counsel competently represented him at trial. Appellate review of a claim of ineffective assistance of counsel is a...

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