State v. Simpson

Decision Date03 November 2020
Docket NumberNo. A-19-923.,A-19-923.
CourtNebraska Court of Appeals

(Memorandum Web Opinion)


Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge. Affirmed.

Ryan M. Hoffman, of Anderson, Bressman, Hoffman & Jacobs, P.C., L.L.O., for appellant.

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


MOORE, Judge.


Arthur C. Simpson appeals from his convictions in the district court for Douglas County for assault by strangulation, negligent child abuse, unlawful discharge of a firearm, and use of a deadly weapon (firearm) to commit a felony. The court imposed sentences totaling 35 to 55 years' imprisonment. On appeal, Simpson challenges the court's denial of certain pretrial motions, the admission of testimony regarding the victim's background history, the failure to arraign him on the amended information, and the sentences imposed. He also asserts that he received ineffective assistance of trial counsel in various regards. For the reasons set forth herein, we affirm.


The charges in this case stem from events that occurred on April 15 and 16, 2017. On the morning of April 16, law enforcement responded to a dispatch about "[s]hots fired" at a residence in Omaha, Nebraska. Officers who responded spoke with individuals standing outside and obtained a description of the parties involved, who had left the area. They also learned that a baby in a carrier had been located outside the residence in question.

The baby's mother, Christina Copeland, a resident at the address and one of the parties involved, returned to the scene after being contacted by officers, and she provided them with a summary of events. Copeland told officers that Simpson, who was her boyfriend and the baby's father, had repeatedly physically assaulted her throughout the morning, and that before he left the area on foot, he had fired a gun at her while she was in a vehicle. After canvassing the area, the officers did not locate Simpson, but they did find two bullet casings near the residence. Copeland was interviewed further at the police station, where an officer took photographs documenting her injuries.

The following day, police obtained an arrest warrant for Simpson, who turned himself in at some point.


On June 8, 2017, the State filed an information, charging Simpson with assault by strangulation in violation of Neb. Rev. Stat. § 28-310.01 (Reissue 2016), a Class IIIA felony; child abuse in violation of Neb. Rev. Stat. § 28-707 (Reissue 2016), a Class IIIA felony; unlawful discharge of a firearm in violation of Neb. Rev. Stat. § 28-1212.02 (Reissue 2016), a Class ID felony; and use of a deadly weapon (firearm) to commit a felony in violation of Neb. Rev. Stat. § 28-1205 (Reissue 2016), a Class IC felony. Assault by strangulation was incorrectly identified in the information as being a Class IV felony. The information stated that these violations occurred "[o]n or about 16 April 2017." Subsequently, Simpson filed a "Written Arraignment," waiving his right to physically appear for arraignment in district court and asking the court to enter a plea of "Not Guilty" on his behalf, which the court did.

On July 9, 2018, Simpson filed a pro se motion to suppress "all insufficient evidence, fabricated evidence, false reports, inadmissible hearsay, and all bias or prejudice by the State" based on his assertions that the Omaha Police Department (1) lacked sufficient proof that he discharged a firearm, (2) did not have a reasonable belief supported by specific facts that he was armed or had access to a firearm, (3) did not have a reasonable belief supported by specific facts that Copeland was strangled or assaulted by Simpson, and (4) did not have sufficient evidence or a reasonable belief supported by specific facts that Simpson was present at the time of the crime.

A hearing on Simpson's motion was held on September 26, 2018, and continued to November 27 for further evidence. Simpson was represented by counsel at the suppression hearing. At the start of the first hearing date, his attorney expressed his understanding of the issues raised in Simpson's motion as being a challenge to the probable cause for Simpson's arrest and a challenge to "some portion of the identification." The hearing proceeded based on thatunderstanding of the issues raised in Simpson's motion. Simpson's pro se motion did not clearly address whether he was seeking to suppress both the photographic lineup used when Copeland was interviewed at the police station and any in-court identification. His attorney's arguments at the hearing focused on whether the single photographic lineup used during the interview was unduly suggestive.

Over the course of the hearing, the district court heard testimony from several of the police officers who responded to and investigated the reports of gunshots and domestic violence. One officer testified about responding to the "ShotSpotter activation call" that morning, his initial actions upon arriving in the area, and his discussion with Copeland after she returned to the scene, during which she identified Simpson (by name and birthdate) as the person that had assaulted her. Another officer testified about her preparation of the affidavit for the arrest warrant. The State asked the district court to take judicial notice of "the affidavit of complaining witness that is contained within the court file," and the court indicated that it would do so. However, the affidavit was not marked, identified, and made part of the bill of exceptions.

On the second day of the hearing, a third officer testified about her interview with Copeland, during which Copeland again indicated that Simpson was her assailant. Copeland provided the officer with Simpson's name and date of birth, after which the officer located a copy of Simpson's driver's license photo and showed it to Copeland, who identified the person depicted as Simpson and indicated that he was the one who assaulted her. The court received into evidence a copy of Simpson's driver's license photo; the officer identified it as a copy of the photo shown to Copeland but noted that the exhibit had identifying info that she had "cropped out" first and did not contain Copeland's written notation identifying the person depicted as "[her] boyfriend, Arthur Simpson" as the original photo had been "placed in property or evidence down at police headquarters." The court also received a DVD copy of the officer's interview with Copeland. At the close of this hearing, the State asked the court to take judicial notice of "the affidavit for arrest warrant" contained in the court file because the prosecutor did not recall whether this had been done previously. Simpson's attorney indicated that he had no objection, and the court again took judicial notice of the affidavit. As before, the affidavit was not marked, identified, and made part of the bill of exceptions.

On December 26, 2018, the district court entered an order, denying Simpson's motion to suppress. Upon reviewing the DVD of the interview with Copeland, the court found ample probable cause for Simpson's arrest and that his constitutional rights were not violated. The court also found that the identification procedure was "performed appropriately and in no way was unduly suggestive under these particular circumstances." The court noted that prior to employing the photo identification procedure, the officer was fully informed that Copeland and Simpson were intimate partners. Accordingly, the court found that showing only Simpson's photograph to Copeland during the interview did not violate his constitutional rights.

Simpson also filed two pretrial motions in limine through his attorney. In the first motion, Simpson sought an order prohibiting the introduction, directly or indirectly, of evidence regarding Simpson's prior convictions, allegations by Copeland that Simpson physically abused or threatened her on any dates preceding the date of the offense charged, and allegations by any witness that Simpson physically abused or threatened any individual on any date. Simpson assertedthat such evidence was irrelevant and excludable pursuant to Neb. Rev. Stat. § 27-404 (Supp. 2019), and alternatively, that any probative value was outweighed by its prejudice to Simpson and that it should be excluded under Neb. Rev. Stat. § 27-403 (Reissue 2016). In the second motion in limine, Simpson sought the exclusion of "any evidence . . . regarding the date results in VeriTracks as reported by [the ankle monitor worn by Simpson]" because (1) "[t]he tracking method and procedures . . . are not technically sound," (2) "[t]he results shown are not accurate as to the provided location information, date, time, and device information," and (3) "[t]he probative value of such information is substantially outweighed by the danger of unfair prejudice." (Simpson was on parole at the time of the incidents at issue here and wore an electronic ankle monitor).

The district court ruled on those motions just before trial began. The court sustained the first motion. With respect to the electronic monitoring data, the court ruled that "as long as there's proper foundation, et cetera, laid when that individual comes and testifies here today or whatever, that the Court's going to allow that to be admitted." The court stated further, "There is going to be an issue as a result of this evidence, when we get to it, that the . . . issue of parole in reference to the defendant is going to have to be mentioned." The court noted and the State confirmed its agreement that the word "parole" would "be all that's mentioned" and that there would not be ...

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