State v. Garcia

• Citation: 923 N.W.2d 725,302 Neb. 406
• Decision Date: 08 March 2019
• Docket Number: No. S-17-1202.,S-17-1202.
• Parties: STATE of Nebraska, Appellee, v. Carlos A. GARCIA, Appellant.
• Court: Supreme Court of Nebraska

302 Neb. 406

923 N.W.2d 725

STATE of Nebraska, Appellee,

v.Carlos A. GARCIA, Appellant.

No. S-17-1202.

Supreme Court of Nebraska.

Filed March 8, 2019

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, Nathan A. Liss, Lincoln, and, on brief, Joe Meyer for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Carlos A. Garcia was convicted and sentenced for robbery in the district court for Douglas County. Garcia appeals and claims that the district court erred when it admitted into evidence a note that was found in what he asserts was an improper search of his person and when it determined that he was competent to stand trial and for sentencing. He also claims that there was not sufficient evidence to support his conviction, that his trial counsel provided ineffective assistance, and that the court imposed an excessive sentence. We affirm Garcia’s conviction and sentence.

STATEMENT OF FACTS

In the mid-afternoon of October 27, 2015, Brandon Ruser was working as a teller at a bank in Omaha, Nebraska, when a man Ruser would identify at trial as Garcia approached him. Garcia handed Ruser a note that read, "THIS IS A ROBBERY PUT THE MONEY ON THE COUNTER." Ruser testified at trial that when he saw the note, he "[f]roze" out of "[f]ear, panic." Ruser reread the note to be sure he had read it correctly. Thereafter, in accordance with the protocol he had learned in training, Ruser collected the cash that was in his drawer, placed it on the counter, and backed away. After Ruser put the cash on the counter, Garcia picked up the note, put it in his pocket, and left the bank with the cash. It was later determined that $3,579 had been taken from the bank.

After Garcia left the bank, Ruser reported to his coworkers what had happened. Ruser looked outside and saw Garcia get into the front passenger seat of a black Toyota RAV4 that was parked in the bank’s parking lot. Ruser could not see the driver well, but he testified the driver "appeared to be a woman. I just saw longer hair." The vehicle slowly backed up and drove away in a manner that Ruser described as "pretty much as if nothing had happened."

Police officers investigating the robbery learned from witnesses the license plate number for the black Toyota in which Garcia was seen leaving the bank. Using the license plate number, officers learned that the vehicle was registered to Kelli Allison. They went to the address listed for Allison on vehicle license records, and there, they spoke with Allison. Garcia was the father of Allison’s two children, and she had had an "on-again-off-again" relationship with him over the years. In October 2015, they were not in an intimate relationship and were not living together, but they were friends, and she was helping him by paying the rent for a motel where he was staying.

Allison told police that earlier in the day on October 27, 2015, she had helped Garcia by driving him to run some errands. As the final errand, Garcia asked Allison to take him to a local bank to cash a check. Allison waited in the parking lot while Garcia went into the bank. He was inside for 5 to 10 minutes before he came back out and got into the car. Allison then drove Garcia back to the motel where he was staying.

Police officers thereafter applied for a warrant to search Garcia’s motel room. Preliminary to our discussion of the application for the search warrant, we note that throughout both the application and the search warrant itself, the suspect is sometimes referred to as "Carlos Garcia," but roughly in an equal number of times, he is referred to as "Carlos Gomez." In the discussion below, for the sake of clarity, we refer to "Garcia," but for completeness, it should be noted that in at least some of the instances discussed below, the application or the search warrant actually refers to "Carlos Gomez" rather than to "Carlos Garcia." Alfred S. Orsi, the police officer who prepared the application for the search warrant, explained that this was a typographical error.

As grounds for issuance of the search warrant, Orsi noted, inter alia, information obtained from Allison to the effect that she had taken Garcia to the bank and thereafter to his motel room. Orsi also noted that officers had gone to the motel and confirmed with the manager that the room identified by Allison was being rented in Allison’s name. The manager also stated that in the recent past, he had observed a man fitting Garcia’s description going into the room; after being shown a picture of the robbery suspect taken from the bank surveillance video, the manager identified the man in the photograph as the man he had seen going into the room. Orsi further noted in the application that officers had shown Ruser, the bank teller, a photographic lineup that included a picture of Garcia and that Ruser had identified Garcia as the robber.

In the application, Orsi listed various items that were the intended targets of the search. These items included, inter alia, cash, clothing that the robber was described as having worn, and, notably for this appeal, a robbery note "stating something to the effect of ‘This is a robbery, put the money on the counter.’ " Orsi asserted that the listed items were "concealed or kept in, on, or about the following described place or person." Orsi thereafter gave the address and room number for the motel room and stated that the search location was to include, inter alia, vehicles at the location that were connected to or under the control of the suspect. The application further stated that "said property is under the control or custody of: Carlos GARCIA," and gave a physical description of Garcia. Orsi further requested authorization for a night-time search and a no-knock, no-announce search warrant. Orsi asserted that although no weapon had been shown during the robbery, Garcia had a history of violence which included a prior conviction and incarceration for manslaughter.

Based on Orsi’s application, the Douglas County Court issued a search warrant on October 27, 2015. The court set forth the items listed in the application and found that there was probable cause to believe that the items were concealed in the motel room, in vehicles under the control of the suspect, or, inter alia, on "the person of Carlos GARCIA." The search warrant gave Orsi, "with the necessary and proper assistance," authority "to search the afore described location and/or person, for the purpose of seizing the before described property." The search warrant further gave authority to execute a night-time search and to enter the premises without knocking or announcing. The warrant required Orsi to make return of the warrant within 10 days.

Orsi conducted a search of the motel room "an hour or two after the warrant and affidavit were signed by the judge." Orsi did not search any vehicles as part of the search of the motel room, because he was "unaware of any vehicles that were associated with [Garcia] at that location." Orsi did not conduct a search of Garcia’s person at the time of the search of the motel room or at any other time. Although Orsi interviewed Garcia on October 28, 2015, that interview occurred "[w]ell after the search" of the motel room. After completing the search, Orsi filed in the county court a return and inventory stating that he had served the warrant on October 27. The return and inventory listed various items that were seized pursuant to the warrant, but notably, the items listed did not include a robbery note.

At approximately 1:15 a.m. on October 28, 2015, Derrick Kreikemeier, an Omaha police officer, passed "a blue older model ... Chevy Suburban or Tahoe" coming from the opposite direction and noted that it was being driven without a front license plate. Kreikemeier was a passenger in a patrol cruiser driven by his partner. As they passed the vehicle, Kreikemeier observed the driver enough to gather a general description of the driver. Kreikemeier and his partner turned around to follow the vehicle and observed that there was also no rear license plate. They then initiated a traffic stop of the vehicle. The vehicle initially stopped, but as Kreikemeier approached the vehicle on foot, the vehicle took off at a high rate of speed. As he was approaching the vehicle, Kreikemeier had seen an in-transit sign in the rear window, but he was not able to read the full date before the vehicle took off. Kreikemeier and his partner did not attempt to chase the vehicle, because the stop was "just for a traffic offense." However, Kreikemier notified dispatch to put out a broadcast describing the vehicle, stating that it had fled from a traffic stop, and giving its direction of travel.

Later that morning, at approximately 4 a.m., Kreikemier and his partner were notified that officers had seen the described vehicle, and they went to the location where the vehicle had been seen. They spotted the vehicle traveling down a street and began to follow it. Thereafter, the driver parked the vehicle, and Kreikemeier saw a man get out of the driver’s-side door and begin to run south. Kreikemeier yelled for the man to stop and began a pursuit on foot. When the man was approximately 20 to 25 feet from the vehicle, he tripped and fell, and Kreikemeier was able to catch the man. After learning that the man was named "Carlos Garcia," Kreikemeier ran a data check and learned that Garcia had a suspended driver’s license and that the police robbery unit had issued a "locate" for Garcia for questioning in connection with a robbery.

Kreikemeier observed that the vehicle was the same vehicle he had stopped earlier. Kreiekemeier could not say for certain that Garcia was the same man who was driving the vehicle in the earlier traffic stop, but he observed that Garcia "fit the description" of the driver in the earlier stop. Kreikemeier looked inside the vehicle in order to determine its ownership; he found a...