State v. Warlick

308 Neb. 656

956 N.W.2d 269

STATE of Nebraska, appellee,

v.Jeremiah WARLICK, appellant.

No. S-19-1137.

Supreme Court of Nebraska.

Filed March 19, 2021

Kevin V. Schlender, York, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

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

Freudenberg, J.

I. NATURE OF CASE

In an appeal from several convictions relating to illegal firearm possession and controlled substance charges, the defendant challenges venue, the commencement of trial while the defendant was not represented by counsel, the proceeding with trial after he failed to return to court following a noon recess, and the sufficiency of evidence to support the convictions.

II. BACKGROUND

Following a bench trial in the York County District Court, Jeremiah Warlick was convicted of (1) possession of a controlled substance, marijuana, with intent to distribute, in violation of Neb. Rev. Stat. § 28-416 (Cum. Supp. 2020); (2) possession of a controlled substance, marijuana weighing more than 1 pound, in violation of § 28-416 ; (3) failing to obtain a drug tax stamp, in violation of Neb. Rev. Stat. §§ 77-4302 and 77-4309 (Reissue 2018) ; (4) possession of a firearm during the commission of a felony, in violation of Neb. Rev. Stat. § 28-1205 (Reissue 2016) ; (5) possession of a deadly weapon by a prohibited person, in violation of Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2018); (6) possession of a stolen firearm, in violation of Neb. Rev. Stat. § 28-1212.03 (Reissue 2016) ; and (7) carrying a concealed weapon, in violation of Neb. Rev. Stat. § 28-1202 (Reissue 2016). Warlick's convictions arose from a traffic stop on July 26, 2018, of a vehicle in which Warlick was a front seat passenger.

1. PRETRIAL HEARINGS

Warlick was first advised of his right to counsel, including his potential right to appointed counsel, on August 29, 2018, in county court. The matter was bound over to district court, where the journal entry reflects that Warlick was advised of "all possible penalties and rights," and the bill of exceptions reflects that Warlick, in response to the court's inquiry, stated he had no questions as to the advisement of his statutory and constitutional rights. The court also determined that Warlick did not suffer from any condition that would affect his ability to understand the proceedings. Representing himself pro se, Warlick filed a motion to dismiss, arguing that the officer who stopped his vehicle committed perjury and that the officer initiated the stop outside of York County, without requesting permission from Seward County authorities, which resulted in the officer's having no power to enforce the law outside of York County. Arraignment and a hearing on the motion was continued until November 13.

At the hearing on November 13, 2018, Warlick again appeared without counsel. The district court asked Warlick if he intended to either hire counsel or request that counsel be appointed to him. Warlick answered, "No." The court then asked Warlick if he was waiving his right to counsel, to which Warlick responded, "Yes." The court asked Warlick, "Has anyone made any threats, promises, or forced you to get you to waive your right to counsel?" Warlick answered, "No, sir." The court then found that Warlick freely, voluntarily, knowingly, and intelligently waived his right to counsel. Warlick also waived his right to a jury trial. The court denied Warlick's motion to dismiss.

After the arraignment hearing, Warlick filed a motion to quash the bindover, alleging that the York County District Court had no jurisdiction over the offenses charged and no jurisdiction over Warlick and that "[t]he officer who filed the information had no authority to do so." The State filed a motion to consolidate Warlick's case with the case brought against the driver of the vehicle, Denarro Clark. These motions were taken up at the pretrial hearing on January 29, 2019. The court granted the motion to consolidate, indicating that since this would be a bench trial, the court would be able to keep the evidence separate. The court denied Warlick's motion to quash the bindover.

After the pretrial hearing, Warlick filed a "Motion for Extension of Time" on February 11, 2019, asking the court to continue the date for trial 120 days to allow him to find representation and stating that "[t]his will give time to properly prepare for trial." The court granted Warlick a continuance for an unspecified amount of time, but set a status hearing for March 11.

Warlick appeared at the March 11, 2019, status hearing still without counsel. Warlick indicated he had not signed any contracts yet, but was "looking to do something" for the next hearing. The court asked if Warlick was going to hire counsel on his own or intended to ask for court-appointed counsel, and Warlick responded, "On my own."

The court scheduled trial to begin April 24, 2019, and told Warlick that if he did not have counsel by then, "we'll proceed without counsel." Warlick indicated he understood. Throughout the pretrial hearings and up to trial, Warlick was at liberty after being released on bail.

2. TRIAL

The consolidated bench trial of Warlick and Clark was held on April 24, 2019. Both Warlick and Clark appeared without counsel. When the court asked Warlick if he was ready to proceed to trial, he responded, "No, I'm not ready to proceed at all." But neither Warlick nor Clark objected to the trial beginning at that time or asked for a continuance.

At trial, before calling its first witness, the State offered exhibits 14 and 15, which were certified copies of statements of conviction from Cook County, Illinois.

Exhibit 14 is evidence of a plea-based conviction in Illinois on October 25, 2017, of "FELON POSS/USE FIREARM/PAROLE" and "FELON POSS/USE FIREARM PRIOR," in violation of "720-5/24-1.1(A)." The certified statement of conviction indicates that there was a motion to withdraw as attorney filed on June 30, 2016, and an appearance, possibly by a different attorney, filed on July 26, but there is no indication that Warlick proceeded pro se or was not represented by counsel at the time he pled guilty.

Exhibit 15 is evidence of plea-based convictions in Illinois on June 10, 2010, of "AGG VEH HIJACKING/WEAPON," in violation of "720-5/18-4(a)(3)"; "BURGLARY," in violation of "720-5/19-1(a)"; and "AGGRAVATED UNLAWFUL RESTRAINT," in violation of "720-5/10-3.1(a)." The certified statement of conviction describes that Warlick was appointed a public defender on June 16, 2009, and there is no indication that counsel sought to withdraw or that Warlick proceeded pro se at any time before he entered his pleas.

The State argued that the exhibits established that Warlick was a convicted felon for purposes of the possession of a firearm by a prohibited person charge. The court overruled Warlick's relevancy objection to the exhibits.

The State then presented testimony from the York County sheriff's deputy who conducted the traffic stop of the vehicle. The deputy testified that he observed a vehicle traveling eastbound near mile marker 348 on Interstate 80 in York County with no front license plate and an obstructed rear license plate to the point he could not see the state in which the license plate was issued. Due to heavy traffic, he was not able to catch up to the vehicle and activate his patrol car's overhead emergency lights until mile marker 364, in York County. The deputy stated that the vehicle crossed the county line and came to a stop approximately a quarter mile to a half mile into Seward County, just west of mile marker 366.

After making contact, the deputy identified the driver of the vehicle as Clark and the front seat passenger as Warlick by their respective Indiana and Illinois driver's licenses. Once the deputy had advised Clark of the traffic violation and got his information, he asked Clark to accompany him to his patrol car while he issued Clark a written warning.

The deputy testified that Clark told him Warlick was his cousin and that the purpose of his trip was to go gambling in Las Vegas, Nevada. The deputy stated that "when asking [Clark] questions, he seemed to pause, think about his answer before answering." The deputy testified that Warlick provided a different story, telling him that Warlick and Clark had made a trip to California, and Warlick never mentioned gambling or a trip to Las Vegas. A criminal history check on both Warlick and Clark indicated that both had prior weapons convictions, to which Clark had admitted. Based on a suspicion that criminal activity was afoot, the deputy issued Clark a written warning and then asked him for consent to search his vehicle. Clark agreed.

Upon a search of the vehicle, the deputy discovered underneath the spare tire in the cargo area of the vehicle four bundles of marijuana that were wrapped multiple times in plastic wrap and tinfoil with a "masking agent" between each layer. The deputy testified that a "masking agent ... is common practice to defeat a police service dog" and indicated to him that somebody would have knowingly done this to evade detection. Along with the marijuana, the deputy also found a drawstring bag located in the same area as the marijuana, which contained a handgun, an extended magazine for the handgun, and some hair product. The deputy testified that the marijuana and handgun were accessible from the back seat of the vehicle.

The deputy testified that 4 pounds of marijuana were seized and that based on his training and experience, this amount is consistent with distribution rather than personal use. Also, there was no drug tax stamp located on any of the marijuana seized. The deputy further testified that when the serial number on the handgun was entered into law enforcement databases, a "confirmation hit" was received, indicating that the firearm had been reported as stolen in Illinois. The deputy also pointed out Clark had told him that he was a barber. Subsequent...