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State v. Brooks

Court of Appeals of Nebraska

October 14, 2014


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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.


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[22 Neb.App. 437] Irwin, Judge.


Corey A. Brooks appeals his convictions for possession of a deadly weapon by a prohibited person and possession with intent to deliver methamphetamine. 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.


This case is closely related to and interwoven with State v. Brooks, 22 Neb.App. 419, 854 N.W.2d 804 (2014). The charges in the instant case arose largely out of evidence seized upon Brooks' arrest upon the execution of an arrest warrant issued related to the charges in State v. Brooks. 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).

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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).

As set forth in the opinion in State v. Brooks, supra, Brooks was implicated in the homicide of James Asmus that occurred in September 2011. The investigation into that homicide eventually led Omaha Police Department (OPD) officers to obtain and execute an arrest warrant to take Brooks into custody.

[22 Neb.App. 438] 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. Brooks' attorney, Bill Eustice, had previously contacted OPD Sgt. Donald Ficenec during OPD's investigation into the homicide of Asmus and had indicated 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 time for Brooks to make a statement. Prior to arrangements' being made and Brooks' making a statement, however, OPD officers obtained and executed the arrest warrant. In light of Eustice's prior contact, 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 already told . . . Eustice." After Brooks spoke with Eustice, he was advised of his Miranda rights and was interviewed by another OPD officer.

During the course of the interview, Brooks made statements about the drugs found on his person " two to three" times. When Ficenec made a statement about OPD's having " located four and a half grams" of drugs, Brooks " corrected him and said ounces." Brooks also stated during the interview, " I got caught with the drugs, I did get caught with the gun, that's mine." Finally, Brooks also made a statement about the cash found on his person; Ficenec made a statement indicating that approximately $2,500 had been located, and Brooks indicated that " it should be closer to [$]4,000."

[22 Neb.App. 439] 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.

In February 2012, Eustice was allowed to withdraw from representing Brooks. Another attorney entered an appearance on behalf of Brooks. In July, 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

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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 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 of Corrections and asked that all police reports be confiscated from Brooks' possession. The confiscated materials were then sealed and eventually turned over to the State.

The State then attempted to have Brooks' then-counsel, the aforementioned third attorney, review the materials and remove any work product. The sealed materials were opened, and the attorney was requested to take possession of the materials and remove any work product; he refused to take possession of the materials. The materials were then locked in an evidence room.

In July 2012, Brooks filed a second amended motion to suppress, in which he sought to suppress, " from use against [Brooks], any and all evidence contained in the police reports [22 Neb.App. 440] associated with" the instant case. Brooks alleged that a variety of his constitutional rights had been violated by the confiscation of police reports from his cell. In August, the State filed a motion seeking to have Brooks compelled to review the confiscated material and remove any work product.

At a hearing on Brooks' motion to suppress evidence contained in the police reports, Brooks testified at length about the police reports that had been confiscated from his possession. He testified that he had previously reviewed the police reports with his counsel, that together they had made notes and underlined information on the police reports, and that the reports had his " writing, underlining and notes written on almost every page." When Brooks was shown the reports confiscated from his possession, he testified that a number of pages appeared to be missing.

The two exhibits that compose the reports confiscated from Brooks' possession are together more than 500 pages in length. Although the testimony before the trial court reflected that the reports were contained in a variety of " envelopes" and were testified to in conjunction with references to the reports in each of approximately nine envelopes, the exhibits presented to this court on appeal do not contain those envelopes and, instead, include simply a series of police reports with a blank blue sheet inserted occasionally between them, throughout; our review suggests that the blue sheets and the contents between them do not correspond to any particular envelopes or to any indication of the specific reports within a particular envelope as testified to before the trial court. A review of the police reports presented to this court indicates that few of the more than 500 pages include any kind of ...

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