State v. Brooks

• Decision Date: 17 September 1996
• Docket Number: No. A-95-1118,A-95-1118
• Citation: 5 Neb.App. 5,554 N.W.2d 168
• Parties: STATE of Nebraska, Appellee, v. Clinton BROOKS, Jr., Appellant.
• Court: Nebraska Court of Appeals

Page 168

554 N.W.2d 168

5 Neb.App. 5

STATE of Nebraska, Appellee, v. Clinton BROOKS, Jr., Appellant.

No. A-95-1118.

Court of Appeals of Nebraska.

Sept. 17, 1996.

Syllabus by the Court

1. Criminal Law: Courts: Appeal and Error. Upon appeal from a county court in a criminal case, a district court acts as an intermediate appellate court, rather than as a trial court, and its review is limited to an examination of the county court record for error or abuse of discretion.

2. Courts: Appeal and Error. Both a district court and a higher appellate court generally review appeals from a county court for error appearing on the record.

3. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

4. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld unless its findings of fact are clearly erroneous.

5. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

6. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. Police can constitutionally stop and briefly detain a person for investigative purposes if the police have a reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the Fourth Amendment.

7. Investigative Stops: Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause.

8. Investigative Stops: Probable Cause. A finding of a reasonable suspicion must be determined on a case-by-case basis.

9. Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause: Appeal and Error. In determining whether facts known to a law enforcement officer at the time of the investigatory stop provided a reasonable basis for the stop, an appellate court must consider the totality of the circumstances, including all of the objective observations and considerations, as well as the suspicions, drawn by a trained and experienced law enforcement officer by inference and deduction that the individual stopped is, has been, or is about to be engaged in criminal behavior.

10. Sentences: Prior Convictions: Appeal and Error. A sentencing court's determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court's determination is clearly erroneous.

11. Ordinances: Judicial Notice: Appeal and Error. An appellate court will not take judicial notice of an ordinance not in the record, but assumes that a valid ordinance creating the offense charged exists, that the evidence sustains the findings of the trial court, and that the sentence is within the limits set by the ordinance.

12. Sentences: Prior Convictions: Records: Right to Counsel: Waiver. Challenges to prior plea-based convictions for enhancement proceedings may be made only for the failure of the face of the transcript to disclose whether the defendant had counsel or knowingly, understandingly, intelligently, and voluntarily waived counsel at the time the pleas were entered.

13. Sentences: Prior Convictions: Records: Right to Counsel: Waiver: Proof. In a proceeding for an enhanced penalty, the State has the burden to show that the record of a defendant's prior conviction, based on a plea of guilty, affirmatively demonstrates that the defendant was represented by counsel, or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right.

14. Records: Waiver. A checklist docket entry is sufficient to establish that a defendant has been advised of his rights and has waived them.

15. Records. A checklist or other such docket entry which is made by one authorized to make it imports verity, and unless contradicted, it stands as a true record of the event.

Dennis R. Keefe, Lancaster County Public Defender, and Joseph D. Nigro for appellant.

Norman Langemach, Jr., Lincoln City Prosecutor, for appellee.

HANNON and SIEVERS, JJ., and HOWARD, District Judge, Retired.

HOWARD, District Judge, Retired.

Clinton Brooks, Jr., was convicted in Lancaster County Court of operating a motor vehicle while his operator's license was suspended. The sentencing court subsequently enhanced the offense to operating a motor vehicle with a suspended license, second offense. On appeal, the Lancaster County District Court affirmed the judgment of the county court. Brooks now appeals to this court, arguing that the district court erred in affirming the county court's (1) denial of his motion to suppress and (2) enhancement of the offense to operating a motor vehicle with a suspended license, second offense. For the reasons set forth below, we affirm.

FACTUAL BACKGROUND

On October 16, 1994, Officer Mark Unvert began an investigation into allegations that Brooks had been making unauthorized telephone calls on a calling card belonging to Cindy Vorderstrasse. According to Officer Unvert, Vorderstrasse indicated that numerous calls, in the amount of $118, had been charged to her missing calling card, although neither she nor her husband had made such calls. The record reflects that $42.19 worth of the calls were made in Lincoln. Vorderstrasse also reported that an acquaintance, Prudence Waters, had informed her that she had found a slip of paper in Brooks' belongings which contained Vorderstrasse's calling card number. Officer Unvert interviewed Waters, who confirmed that she had discovered a slip of paper with a calling card number among Brooks' personal effects. Officer Unvert was given an address and a description of Brooks' vehicle, but was unable to locate him. Officer Unvert concluded that he did not, at that time, have probable cause to arrest Brooks for fraud. Having decided that he needed to speak with Brooks, on October 17, Officer Unvert issued a broadcast for Brooks and his vehicle, which Officer Unvert described as follows: "I indicated to initiate a broadcast for Clinton Brooks, Junior, indicating he was a black male, 5'10"' tall, 205 pounds. I also put on the broadcast possibly driving a gray and black Cadillac with license plate number, 1-County-S-Sam-5-8-9-5." In the broadcast, Officer Unvert directed the other officers to "identify the party, interview and take the appropriate action."

The stop in question occurred on November 29, 1994, when Officer Joanne Jindrick Brooks filed a motion to suppress, contending that the stop violated his constitutional rights. The Lancaster County Court overruled the motion, as well as Brooks' objection at trial, and subsequently found Brooks guilty of operating a motor vehicle with a suspended license. At Brooks' enhancement hearing, the court admitted, over Brooks' objections, two exhibits. The first exhibit contained a copy of a prior failure to appear conviction and is of no relevance. The second exhibit introduced, dated September 23, 1994, was a copy of a checklist docket entry showing that Brooks had pled guilty in Douglas County Court, pursuant to a plea agreement, to the charge of operating a motor vehicle during a period of suspension or revocation, for which he received a sentence of 7 days' imprisonment and a license suspension for 12 months. The relevant part of the checklist is as follows:

                was told by another officer that Brooks' vehicle was wanted in regards to a broadcast.  According to Officer Jindrick, an Officer Ashley "observed the vehicle and since he was not able, he was on a--a bicycle, he was not able to catch up to the vehicle to stop it.  He requested assistance and I was close by."   Officer Jindrick caught up with the silver Cadillac, Nebraska license plate No. 1-S5895, westbound on L Street near 9th Street.  Officer Jindrick activated her cruiser's red lights, and the Cadillac stopped on the Capitol Parkway West overpass.  Officer Jindrick noted from a copy of the broadcast in her car that the Cadillac matched the broadcast description of the vehicle.  Officer Jindrick admitted, however, that she did not stop Brooks' vehicle pursuant to a warrant nor did she stop the vehicle as the result of a traffic violation.  When Officer Jindrick asked Brooks for his operator's license, he told her that it had been suspended.  After verifying that Brooks' license had indeed been suspended, Officer Jindrick issued him a citation.  Officer Jindrick also explained her reason for stopping him:  "That there was a broadcast for his vehicle that he was driving and that we needed to discuss what had occurred in regards to this broadcast."   According to Officer Jindrick, Brooks immediately started explaining the circumstances.  Officer Jindrick subsequently took Brooks to the police station, where she interviewed him regarding the fraud investigation.  Although it appears no charges were ever filed against Brooks as a result of the fraud investigation, Brooks was charged with operating a motor vehicle while his license was suspended, in violation of Lincoln Mun.Code § 10.16.060 (1993)
                

{X} Defendant advised of the nature of the above charges, all possible penalties, and each of the following rights: Counsel; Trial; Jury Trial; Confront Accusers; Subpoena Witnesses; Remain Silent; Request Transfer to Juvenile Court; Defendant's Presumption of Innocence; State's Burden of Proof Beyond Reasonable Doubt.

{X} Defendant waived each of the above and foregoing...