State v. Sierra

• Decision Date: 13 March 2020
• Docket Number: No. S-19-180.,S-19-180.
• Parties: STATE of Nebraska, appellee, v. Jonathan J. SIERRA, appellant.
• Court: Nebraska Supreme Court

305 Neb. 249

939 N.W.2d 808

STATE of Nebraska, appellee,

v.Jonathan J. SIERRA, appellant.

No. S-19-180.

Supreme Court of Nebraska.

Filed March 13, 2020

Lisa M. Meyer, Omaha, of Fillman Law Offices, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

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

Freudenberg, J.

I. NATURE OF CASE

Jonathan J. Sierra was convicted of burglary, conspiracy to commit burglary, and several counts of theft involving a truck, a trailer, and several tools from a garage. Sierra’s accomplice, Jonathan Mally, entered into a plea agreement with the State and testified against Sierra. The majority of Sierra’s claims in this direct appeal are ineffective assistance of counsel claims. Sierra also claims that his court-appointed trial counsel had a personal conflict of interest because she was being investigated for and was charged with theft during her representation of Sierra. Finally, Sierra asserts that he was charged with separate theft charges in violation of the Double Jeopardy Clause of the U.S. Constitution.

II. BACKGROUND

In December 2017, the State filed an eight-count complaint against Sierra alleging that Sierra was involved in the theft of a truck and trailer which he then used to assist in the theft of automotive tools from a mechanic’s garage in York, Nebraska. The complaint was based on an incident which occurred in the early morning of October 15, 2017, when a window of Extreme Automotive in York was broken and tools were stolen from the premises. The tools belonged, separately, to a co-owner of the garage business and his two employees. The co-owner, Andrew Wilkinson, notified the officer investigating the break-in, Sgt. Michael Hanke, that his checkbook and debit card had also been stolen.

Sierra was charged with eight counts: (1) burglary; (2) conspiracy to commit burglary; (3) three counts of theft by unlawful taking ($5,000 or more), which were related to the tools taken; (4) theft by unlawful taking ($5,000 or more) for stealing the truck; (5) theft by unlawful taking (less than $1,500 to $5,000) for stealing the trailer; and (6) criminal mischief (less than $500).

Upon Sierra’s request, the court appointed an attorney to represent him in this matter. During preparation for trial, Sierra became frustrated with the lack of action on his attorney’s part and requested that she withdraw. Sierra’s attorney moved to withdraw. At the hearing on the motion, Sierra’s attorney indicated that there was a breakdown of the attorney-client relationship. Sierra told the judge that he had stopped speaking with his attorney and that he tried to have his fiance and mother talk with his attorney in his stead. Sierra claims that he spoke with his attorney only twice prior to the hearing. The court denied the motion.

The court adopted the parties’ reciprocal discovery agreement and set a deadline of March 5, 2018, or "as soon as it becomes reasonably discovered, but not less than ten days before trial." Approximately 4 months after the reciprocal discovery deadlines and 5 days before trial, Sierra’s attorney filed, for the first time, a witness list identifying five witnesses that the defense intended to call. The State responded by filing a motion in limine to preclude undisclosed witnesses, alibi defense, and undisclosed exhibits. In the alternative, the State asked for a 30-day continuance.

At the hearing to consider the motion, the State pointed out that Sierra had failed to comply with the deadline for reciprocal discovery and the 30-day deadline for notice of alibi defense and had filed the witness list less than 10 days before trial.

Sierra’s attorney responded that all of the witnesses were known to the State from its reports and that one witness was on the State’s list, but Sierra’s attorney did not provide any reason for not complying with the reciprocal discovery order. Similarly, Sierra’s attorney also did not provide a reason for failing to comply with the statutory notice requirements for an alibi defense. Rather, she asked the judge to waive the notice requirement in the interest of justice. The district court sustained the State’s motion in limine. As a result, Sierra was able to call only one of the five listed witnesses and was precluded from pursuing his alibi defense.

At trial, Hanke’s testimony provided a general timeline of the investigation. Hanke testified that after Wilkinson called the York police about the break-in, police reviewed surveillance videos taken from businesses in the area. The videos revealed that two individuals stole a truck from the garage parking lot and then drove to a nearby pizza restaurant, where they stole a trailer before returning to the garage. Thirty minutes later, the truck and trailer left the garage.

Wilkinson’s bank notified him on October 15, 2017, that someone had attempted to use the stolen debit card at a Walmart store in Norfolk, Nebraska. Wilkinson notified law enforcement of the bank’s report. Hanke used that information to get pictures taken from the Norfolk Walmart’s security cameras, which depicted two individuals using the stolen debit card. Hanke testified that, based on information received from the Butler County Sheriff’s Department, the investigators eventually identified both of the individuals in the photographs as Mally and Sierra.

A Walmart store in York provided photographs of two individuals to law enforcement, after the individuals were suspected of shoplifting on the morning of October 15, 2017. Maggie Wolfe, an asset protection associate for the York Walmart, and Hanke presented identification testimony related to the photographs taken from the Walmarts in York and Norfolk. Wolfe provided the authentication for exhibit 1, a collection of photographs taken from the York Walmart on the morning of the burglary. During direct examination, Wolfe positively identified Sierra as being depicted in the photographs taken from the York Walmart. On cross-examination, Wolfe admitted that her identification of Sierra came after she read about the investigation in the newspaper.

Hanke testified that a cell phone traceable to Sierra "pinged off [of]" a cell tower in York around the time that Mally’s testimony placed them both in York. Hanke testified that cell phone records placed Sierra’s cell phone within 20 miles of York on the day of the burglary. Sierra’s attorney did not object to Hanke’s testimony about the content of the cell phone records, and the records themselves are not in evidence.

Evidence recovered from the search of Sierra’s home was admitted based on the testimony provided by Hanke. According to Hanke’s testimony at trial, based on the Butler County, Nebraska, sheriff’s identification of Sierra in the photographs taken from the York Walmart and pursuant to a clause in Sierra’s probation order, police searched Sierra’s residence, where they found a majority of the tools taken from Extreme Automotive. The sheriff who identified Sierra in the photographs did not testify at trial. The law enforcement officers who conducted the search did not testify at trial, and the probation order is not in the record.

Hanke testified that the stolen truck was recovered after being abandoned on the road north of the York Walmart. The stolen trailer was recovered after being abandoned on the road near Genoa, Nebraska. Sierra’s attorney made no objections to these portions of Hanke’s testimony. Hanke testified that during his first interview of Sierra, Sierra claimed he had never been to York, denied all involvement in the burglary, and said that he possessed the tools because he had purchased them from Mally.

Sierra’s attorney cross-examined Hanke about the story Sierra gave to the York police as to how the tools ended up in his possession. Hanke testified that during his first interview, Sierra denied ever being in York, and that Sierra claimed he had purchased the tools. Hanke testified that during a second interview with Sierra, Sierra admitted to being in York. Sierra’s attorney did not object to Hanke’s testimony regarding either interview.

Mally was arrested in Columbus, Nebraska, for an unrelated incident. A search revealed that Mally had on his person and in his vehicle several of the tools and financial items taken from Extreme Automotive. A warrant was executed for Mally’s residence, where several more items from Extreme Automotive were found. Mally subsequently entered into a plea agreement with the State and testified against Sierra.

Mally testified as Sierra’s accomplice and provided a general timeline for the events on October 15, 2017, similar to that set forth by Hanke. Mally testified that he helped Sierra commit the burglary and theft at Extreme Automotive because Sierra needed mechanics tools. Mally asserted that the various pictures taken at both Walmart locations accurately depicted Sierra and him at those locations. Mally also testified that he was receiving benefits from the State concerning various charges in exchange for his cooperation.

Evidence concerning the value of the tools was presented through various sources at trial. Several of the exhibits entered into evidence by the State display tools that were recovered from the search of Mally’s residence. During the presentation of evidence recovered from Mally’s residence, Sierra’s attorney made several objections, some of which were sustained. There was also evidence of financial items, including checkbooks and a debit card, that were recovered in Mally’s possession and testimony by Mally that Sierra attempted to use the stolen debit card to buy items. Mally denied the existence of any arrangement with Sierra to buy the tools.

Sierra’s attorney elected to forgo the creation of a record of the voir dire, closing arguments, and jury instructions. The jury instructions that were given are preserved in the transcript. A jury found Sierra guilty on all counts except the charge of...