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State v. Brooks

Court of Appeals of Nebraska

October 14, 2014

STATE OF NEBRASKA, APPELLEE,
v.
COREY A. BROOKS, APPELLANT

Page 805

[Copyrighted Material Omitted]

Page 806

Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

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

OPINION

Page 807

[22 Neb.App. 421] Irwin, Judge.

I. INTRODUCTION

Corey A. Brooks appeals his convictions for manslaughter, use of a deadly weapon to commit a felony, and possession of a

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deadly weapon by a prohibited person. On appeal, Brooks challenges the denial of motions to suppress and alleges his various trial attorneys provided ineffective assistance of counsel. We find that Brooks' assertions regarding counsel cannot be resolved on the record provided, and we otherwise find no merit to Brooks' assertions on appeal. We affirm.

II. BACKGROUND

This case is closely related to and interwoven with State v. Brooks, 22 Neb.App. 435, 854 N.W.2d 816 (2014). The charges in that case arose largely out of evidence seized upon Brooks' arrest upon the execution of an arrest warrant issued related to the charges in the instant case. Because of the interwoven nature of the evidence and procedural posture of the two cases, we take judicial notice of the appellate record presented in State v. Brooks. See Dowd Grain Co. v. County of Sarpy, 19 Neb.App. 550, 810 N.W.2d 182 (2012) ( appellate court may examine and take judicial notice of proceedings and judgment of interwoven cases). See, also, Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008) (appellate court may take judicial notice of documents filed in separate but related action).

The events giving rise to this case occurred during the evening hours of September 2, 2011. On that date, Omaha Police Department (OPD) officers answered a radio call of a shooting and found the victim, James Asmus, deceased, in a detached garage. Officers observed a gunshot wound to Asmus' head. Asmus had also been shot in the leg.

OPD officers investigated Asmus' death and conducted numerous interviews with several witnesses and suspects, executed search warrants, and investigated telephone records. As [22 Neb.App. 422] a result of that investigation, officers determined that Brooks and a number of other individuals had been in the garage or near the door to the garage at the time of Asmus' shooting. Information obtained during the investigation suggested that on the date in question, Brooks and Asmus got into an argument, during which Brooks grabbed Asmus by the hair and threw him to the floor. A few minutes later, Asmus was apparently seated on a stool and Brooks fired a shot toward Asmus' feet and then shot Asmus in the leg. Two other suspects apparently also fired shots at Asmus, and one of the shots struck Asmus in the head. Throughout the investigation, Brooks denied possessing a gun or shooting Asmus.

On or around September 3, 2011, OPD Sgt. Donald Ficenec was contacted by an attorney, Bill Eustice, who indicated that he represented Brooks and that Brooks " wanted to come make a statement to the Omaha police," but Eustice was at that time out of town and wanted to arrange a statement for the following week. Prior to arrangements' being made and Brooks' making a statement, however, OPD officers obtained and executed an arrest warrant.

OPD officers executed the arrest warrant on September 10, 2011. After conducting surveillance on a location at which they believed Brooks to be located, officers identified Brooks getting into a vehicle. As officers approached, Brooks ran. Numerous officers gave chase and eventually apprehended Brooks. A search of Brooks' person and the area through which he had run resulted in the location of drugs, cash, and a gun.

On September 11, 2011, after being arrested and booked, Brooks indicated to corrections officers that he wished to speak to OPD officers. Brooks was transported to an OPD interview room. In light of the fact Brooks' attorney, Eustice,

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had contacted Ficenec previously, as noted above, Ficenec called Eustice and allowed Brooks to speak with Eustice on the telephone, privately, prior to any OPD interview of Brooks. After Brooks finished speaking with Eustice, Brooks gave the telephone to Ficenec and Eustice indicated to Ficenec that " Brooks had indicated to [Eustice] that he was going to tell [OPD officers] the same information that . . . Brooks had [22 Neb.App. 423] already told . . . Eustice." After Brooks spoke with Eustice, he was advised of his Miranda rights and was interviewed by another OPD officer.

During the September 11, 2011, interview, Brooks maintained repeatedly that he had not possessed a gun at the time that Asmus had been shot. The OPD officer who interviewed Brooks indicated that throughout the interview, Brooks " changed his statement several times about where he was in the garage when all this happened," but the officer agreed that Brooks had not changed his statement in terms of not possessing a gun. During the interview, Brooks minimized his involvement. Although Brooks may have made a statement during the interview concerning being caught with a gun at the time of his arrest, the record indicates that the gun located at the time of Brooks' arrest was not one of the guns used to shoot Asmus.

Brooks also spoke with OPD officers in interviews that occurred on October 30 and December 22, 2011. Both times, in events comparable to the September 11 interview, Brooks requested to speak with OPD officers despite having counsel. Ficenec indicated that Brooks contacted him approximately 13 times between late October and December 2011. During the October and December interviews, Brooks continued to maintain that he had not possessed a gun on the date of the homicide.

In February 2012, Eustice was allowed to withdraw from representing Brooks. Another attorney entered an appearance on behalf of Brooks. In August, this second attorney was allowed to withdraw from representing Brooks. A third attorney was appointed to represent Brooks. Additionally, another attorney appeared as cocounsel with the third attorney on behalf of Brooks.

In July 2012, during the second attorney's argument to the court concerning his request to withdraw from representation of Brooks, he indicated that he had given Brooks a copy of police reports concerning the investigation into Brooks' case. Brooks' personal possession of police reports while incarcerated was contrary to a " Receipt of Discovery" agreement that had been signed on behalf of Eustice, during his [22 Neb.App. 424] representation of Brooks, and signed by the second attorney during his representation of Brooks. The State alleged that Brooks' personal possession of police reports violated " office policies and create[d] a risk of witness interference, harassment and tampering." As a result, the State contacted the Douglas County Department ...


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