State v. Matthews

• Decision Date: 16 February 1999
• Docket Number: No. A-98-055,A-98-055
• Citation: 590 N.W.2d 402,8 Neb.App. 167
• Parties: STATE of Nebraska, appellee, v. Michael Anthony MATTHEWS, appellant.
• Court: Nebraska Court of Appeals

Page 402

590 N.W.2d 402

8 Neb.App. 167

STATE of Nebraska, appellee, v. Michael Anthony MATTHEWS, appellant.

No. A-98-055.

Court of Appeals of Nebraska.

Feb. 16, 1999.

Syllabus by the Court

1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous.

2. Motions to Suppress: Appeal and Error. In determining whether a trial court's ruling on a motion to suppress is 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.

3. Constitutional Law: Police Officers and Sheriffs: Self-Incrimination: Right to Counsel. To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel.

4. Miranda Rights: Right to Counsel. Under Miranda, if the accused requests counsel, the interrogation must cease until an attorney is present.

5. Miranda Rights: Right to Counsel. The Miranda right to counsel requires that a suspect unambiguously request counsel, or in other words, the suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

6. Constitutional Law: Criminal Law: Miranda Rights: Self-Incrimination: Waiver. The Fifth Amendment protection of the privilege against self-incrimination requires that individuals be given certain warnings regarding their rights and that a voluntary, knowing, and intelligent waiver of those rights must be made before incriminating responses to custodial interrogation can be admissible in a criminal proceeding.

7. Miranda Rights. The admissibility of statements obtained after the person in custody has decided to remain silent under Miranda depends on whether the accused's right to cut off questioning was scrupulously honored.

8. Miranda Rights: Police Officers and Sheriffs: Time. If a defendant has invoked the right to be silent and to terminate custodial interrogation by the police, but there is subsequent police interrogation of the defendant, a court considers three factors to determine whether the defendant's right to be silent has been scrupulously honored, namely: (1) Did the police immediately cease interrogation on the defendant's request? (2) Did the police resume an interrogation of the defendant only after passage of a significant time and a renewal of the Miranda warning? and (3) Did police restrict the subsequent interrogation to a transaction or occurrence which was not the subject of the prior interrogation which was discontinued?

9. Venue: Appeal and Error. A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse of that discretion.

10. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion to change venue where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial.

11. Records: Appeal and Error. It is incumbent upon the party appealing to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court is to be affirmed.

12. Constitutional Law: Effectiveness of Counsel: Proof. In order to state a claim of ineffective assistance of counsel as violative of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that his or her counsel's performance was deficient and that such deficient performance prejudiced the defendant, that is, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

13. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question.

14. Appeal and Error. An appellate court will not address a matter on direct appeal when the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing.

15. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court 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, and 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.

16. Criminal Law: Motions for Continuance: Appeal and Error. The decision of whether to grant a continuance in a criminal case is addressed to the discretion of the trial court, and that court's ruling will not be disturbed on appeal absent an abuse of discretion.

17. Motions for Continuance: Appeal and Error. There is no abuse of discretion by a court in denying a continuance unless it clearly appears that the defendant suffered prejudice as a result thereof.

18. Motions for Continuance: Appeal and Error. The failure to comply with the provisions of Neb.Rev.Stat. § 25-1148 (Reissue 1995) is but a factor to be considered in determining whether a trial court abused its discretion in denying a continuance.

Sanford J. Pollack, Lincoln, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.

IRWIN, Chief Judge, and SIEVERS and INBODY, Judges.

INBODY, Judge.

I. INTRODUCTION

Michael Anthony Matthews appeals his convictions for two counts of robbery, arguing that (1) the district court erred in overruling his motion to suppress, (2) the district court erred in overruling his motion for a change of venue, (3) he received ineffective assistance of counsel, (4) the evidence was insufficient to support his convictions, and (5) the trial court erred in denying his oral motion to continue the trial. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

On September 12, 1996, between 7 and 7:30 p.m., 74-year-old Vera Moss was watching television when she heard a knock on her apartment door in Lincoln, Lancaster County, Nebraska. When Moss opened the door, a black man wearing a blue or white shirt, blue shorts, and white tennis shoes, asked for a person by a name that Moss did not recognize. Moss responded that she did not know anyone by that name. The man, standing just inside of Moss' front door, then asked if he could have a drink of water. Moss brought a glass of water to the man, who proceeded to drink it. The man then put his hand on Moss' shoulder and pushed her down. At that time, Moss' roommate came out of the bedroom, apparently frightening the man, because the man "ran off." Moss and her roommate identified Matthews as the man who entered the apartment on September 12.

On September 16, 1996, at around 4 p.m., Frieda Sieck, age 79, was returning from a grocery store to her apartment in Lincoln. As Sieck started to unlock her door, a large black man wearing jeans and a blue and white shirt came up to her and asked her for a drink. Sieck responded that she did not have any and finished unlocking her door. At that point, the man pushed his way into her apartment. Sieck fell down, and the man put one arm around her neck and said he wanted money. The man left after taking $4 out of Sieck's purse.

On that afternoon, Officer Vadra Stutzman was on patrol in southwest Lincoln. At approximately 5 p.m., she observed a black male wearing black jeans and a blue and white shirt walking out of the alley from behind 1215 G Street, which was directly south of Sieck's apartment building. As Officer Stutzman passed the man in her patrol car, he began running across the street. At 11th and E Streets, Officer Stutzman contacted the man, who was sweating and breathing heavily. The man identified himself as "Michael Matthews." Upon patting Matthews down for officer safety, Officer Stutzman found $4 in Matthews' rear pocket. Officer Stutzman then transported Matthews to Sieck's apartment building for Sieck to identify him. Although Sieck was able to state that he was wearing clothing similar to the person who robbed her, she was not able to positively identify Matthews.

On September 16, 1996, Officer Alvin Banks was investigating the robbery of Sieck when he came into contact with Matthews. Officer Banks asked Matthews to accompany him to the Lincoln Police Department, and Matthews complied. During the advisement of Miranda rights, Matthews responded affirmatively when asked if he understood that he had the right to remain silent and not to make any statements or answer any of the officer's questions. However, when Officer Banks told Matthews that "[a]nything you say can be and will be held against you in a court of law, do you understand that?" Matthews responded, "I'm through talking then." Officer Banks then said, "Okay. You don't want to continue any further?" Matthews said, "I told you already what happened three or four times, so...." At that point, Officer Banks terminated the interview.

On September 25, 1996, between 3:30 and 4 p.m., Jean Barber returned home to a duplex in Lincoln that she shared with her husband. Barber unlocked the doors, put her purse on a chair, sat in another chair, and began to read, waiting for her husband, who was to return momentarily. It was a...