State v. Cody

Citation539 N.W.2d 18,248 Neb. 683
Decision Date27 October 1995
Docket NumberNo. S-94-109,S-94-109
PartiesSTATE of Nebraska, Appellee, v. James F. CODY, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Convictions: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact; a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

2. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach a conclusion independent of that of the inferior court.

3. Criminal Law: Trial: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order denying a defendant's motion to suppress, the defendant must object at trial to admission of the evidence which was the subject of the suppression motion in order to preserve an appellate question concerning admissibility of that evidence.

4. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution, a defendant must show that counsel's performance was deficient and that such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

5. Effectiveness of Counsel: Records: Appeal and Error. A claim of ineffective assistance of counsel need not necessarily be dismissed merely because it is made on direct appeal; the determining factor is whether the record is sufficient to adequately review the question.

6. Trial: Appeal and Error. When an issue has not been raised or ruled on at the trial level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal.

7. Constitutional Law: Search and Seizure: Standing. A "standing" analysis in the context of search and seizure is nothing more than an inquiry into whether the disputed search and seizure has infringed an interest of the defendant in violation of the protection afforded by the Fourth Amendment to the U.S. Constitution.

8. Constitutional Law: Search and Seizure. A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.

9. Constitutional Law: Search and Seizure. The special protection accorded by the Fourth Amendment to the U.S. Constitution to the people in their persons, houses, papers, and effects is not extended to open fields.

10. Constitutional Law: Search and Seizure. In order to have a protected Fourth Amendment interest as an overnight guest at searched premises, one must have been such a guest at the time of the search.

11. Miranda Rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prohibits the use of statements stemming from the custodial interrogation of a defendant unless the prosecution demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

12. Miranda Rights: Words and Phrases. For purposes of 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 officers after one has been taken into custody or is otherwise deprived of one's freedom of action in any significant way.

13. Miranda Rights: Arrests: Words and Phrases. One is in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when there is a formal arrest or a restraint on one's freedom of movement of the degree associated with such an arrest.

Toney J. Redman, Lincoln, for appellant.

Don Stenberg, Attorney General, and James A. Elworth, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CAPORALE, Justice.

I. INTRODUCTION

Pursuant to verdict, defendant-appellant, James F. Cody, was adjudged guilty of possessing with the intent to deliver a controlled substance, marijuana, in violation of Neb.Rev.Stat. §§ 28-405(c)(10) [Schedule I] and 28-416(1)(a) (Cum.Supp.1992). He thereupon appealed to the Nebraska Court of Appeals, asserting the district court erred in failing to find that he had standing to challenge the search at which certain evidence was seized. Cody also asserted that he was denied the effective assistance of trial counsel. Determining as a matter of plain error that the evidence was insufficient to support the conviction, the Court of Appeals, without reaching Cody's claims, reversed the judgment of the district court and remanded the cause with the direction that it be dismissed. State v. Cody, 95 NCA No. 16, case No. A-94-109, 1995 WL 228733 (not designated for permanent publication). The plaintiff-appellee State, challenging the Court of Appeals' conclusion that the evidence was insufficient, successfully petitioned for further review by this court. We now reverse the judgment of the Court of Appeals and remand the cause with the direction that it affirm the judgment of the district court.

II. FACTS

Cody's mother, Frances Cody, owned a ranch in Sheridan County, Nebraska. Because she was away during the summer and fall of 1992 taking care of her injured daughter and returned to the ranch only infrequently during this time, Cody cared for the "two old dogs" and a cat she kept there as pets.

During an October 12, 1992, visit to the ranch, the mother went into a shed that served as a garage and a stable to get a pail. Upon entering, she discovered a pile of marijuana spread out on top of a blue plastic tarpaulin. When she found the pail she had originally gone to retrieve, she discovered that it also contained marijuana.

This was not the first time the mother had found marijuana on her property. In both 1990 and 1991, she had called the Alliance Police Department to report some wild marijuana growing at the ranch. After finding the marijuana in the shed on this occasion, she reported it to the police department. Alliance police officer David Lehman responded to the mother's call and went to the ranch to investigate.

Lehman testified that the mother took him to the shed where a large amount of a substance thought to be marijuana was found inside a blue tarp which itself was placed into a white bucket. Lehman also found a wheelbarrow with traces of marijuana inside it, a large double-beam scale with a "lick tub" for cattle on top of it, a large machete, and two empty beer cans. There were several empty dog food and cat food bags in the tack area of the shed, along with a barrel filled with pet food. Lehman searched the stable area and behind a large piece of cardboard found two Lewin Norco lick tubs and a large black trash bag, all of which contained marijuana. Lehman confiscated these items.

Lehman further testified that the marijuana in the lick tubs and in the trash bag had been "manicured," a process by which the leaves and buds of the plants are removed from the stems and the material then dried and ground. He testified that the marijuana in the lick tubs had been there in excess of 2 weeks and that the other marijuana inside the shed had been there for only a few days. Lehman did not comment as to how long the marijuana had been in the trash bag.

A large patch of marijuana was discovered by Lehman growing about 75 to 100 yards north of the shed. The marijuana patch contained approximately 1,000 stripped marijuana plant stems that were still in the ground. Lehman estimated that each plant was capable of yielding about three-quarters of a pound of marijuana. There was a footpath which led around the marijuana patch and also a vehicle path that ran toward the shed.

While Lehman was conducting his investigation, Cody went to his mother's ranch to return a vacuum cleaner. However, Lehman did not interview Cody until the next day, October 13, 1992, at which time Cody admitted that he was experiencing financial problems and acknowledged that he smoked several brands of cigarettes, including Marlboro Lights, generic brands, and Montclair 100's. Cody told Lehman that he had been taking care of the pets at the ranch while his mother was away and that he stayed at the ranch "maybe once or twice a week." Cody also told Lehman that he worked at the Lewin Norco Feed Mill in Alliance.

During the course of the investigation, Lehman confiscated several cigarette butts. He found one Marlboro Light cigarette butt in the shed near the tack area. A Montclair cigarette butt was recovered from the footpath area near the edge of the marijuana patch. An assortment of Marlboro Light, Montclair, and other brands of cigarette butts was recovered from the room at the ranch where Cody occasionally stayed.

Later chemical analysis of the substance found in the two lick tubs, the trash bag, and the blue tarp confirmed that it was marijuana. Several of the confiscated items were also examined for fingerprints. The latent prints found on the two beer cans and on the two lick tubs were insufficient for comparison purposes. Of the six latent prints on the confiscated trash bag, four matched Cody's fingerprints; the other two prints were insufficient for comparison purposes.

At the suppression hearing, two deeds to the mother's ranch were received in evidence. The first showed title to be in the mother, subject to a life estate in her father. The second showed that on October 20, 1992, a week after Lehman had searched the ranch, the mother transferred an undivided half interest in some of the property to Cody's brother and sister.

Lehman, called as a witness by Cody's trial coun...

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