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26 Nebraska Appellate Repor

STATE v. LAMBERSON

Cite as 26 Neb. App. 642

State of Nebraska, appellee, v.

Cody Lamberson, appella

___ N.W.2d ___

Filed December 4, 2018. No. A-17-857.

1. Trial: Convictions: Appeal and Error. An appellate court will sustain 

a conviction in a bench trial of a criminal case if the properly admitted 

evidence, viewed and construed most favorably to the State, is sufficient 

to support that conviction.

2. Convictions: Evidence: Appeal and Error. When reviewing a criminal 

conviction for sufficiency of the evidence to sustain the conviction, an 

appellate court does not resolve conflicts in the evidence, pass on the 

credibility of witnesses, evaluate explanations, or reweigh the evidence 

presented, which are within a fact finder’s province for disposition.

Instead, the relevant question is whether, after viewing the evidence 

in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.

3. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her appellate counsel, all issues of ineffective assistance of trial counsel that are known to the defendant or are 

apparent from the record must be raised on direct appeal. If the issues 

are not raised, they are procedurally barred.

4. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement. An appellate 

court determines as a matter of law whether the record conclusively 

shows that (1) a defense counsel’s performance was deficient or (2) 

a defendant was or was not prejudiced by a defense counsel’s alleged 

deficient performance.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/11/2018 12:12 AM CST
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5. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An 

ineffective assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.

6. Due Process: Convictions: Appeal and Error. Due process does not 

require an appellate court, upon review of a criminal conviction, to take 

the inference most favorable to the accused.

7. Convictions: Evidence: Appeal and Error. When reviewing a criminal 

conviction, the relevant question for an appellate court is whether, after 

viewing the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt. This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from 

basic facts to ultimate facts.

8. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal 

does not necessarily mean that it can be resolved. Such a claim may be 

resolved when the record on direct appeal is sufficient to either affirmatively prove or rebut the merits of the claim. The record is sufficient 

if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that 

trial counsel’s actions could not be justified as a part of any plausible 

trial strategy.

9. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his 

or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.

10. Constitutional Law: Right to Counsel. The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages 

of the criminal proceedings. Interrogation by the State is one of those 

critical stages.

11. Constitutional Law: Right to Counsel: Waiver. The Sixth Amendment 

right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Further, the 

defendant may waive the right regardless of whether or not he is 

already represented by counsel and the decision to waive need not itself 

be counseled.

12. Effectiveness of Counsel. Defense counsel is not ineffective for failing 

to raise an argument that has no merit.

13. Miranda Rights: Waiver. A Miranda waiver may be either express 

or implied.
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STATE v. LAMBERSON

Cite as 26 Neb. App. 642

14. ____: ____. An express waiver of a suspect’s Miranda rights may be in 

writing or oral.

Appeal from the District Court for Sarpy County: Stefan

A. Martinez, Judge. Affirm

Sean M. Reagan, of Reagan, Melton & Delaney, L.L.P., for 

appellant.

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

for appellee.

Pirtle, Riedmann, and Welch, Ju

Welch, Judge

INTRODUCTION

Cody Lamberson appeals his conviction for child enticement. He contends that the evidence was insufficient to support his conviction and that his trial counsel was ineffective by withdrawing his motion to suppress, failing to renew 

the motion during trial, and failing to adduce evidence in 

Lamberson’s defense. Finding no merit to the arguments raised 

by Lamberson on direct appeal, we affirm his conviction 

and sentence.

STATEMENT OF FACTS

On March 25, 2016, the 15-year-old victim and her foster 

sister were at an outlet mall in Gretna, Nebraska. Using her 

cell phone and the outlet mall’s Wi-Fi, the victim was having a 

conversation with her 24-year-old adopted brother Lamberson 

via “Snapchat,” a social media messaging application. The 

20-minute conversation consisted of the victim and Lamberson 

asking each other how they were doing, because they had not 

seen each other or otherwise communicated in about a year. 

The victim testified at trial that she and Lamberson did not 

talk about sex during their Snapchat conversation. Snapchat 

messages disappear after a short period of time if they are 

not saved. When the victim was leaving the outlet mall and 
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would no longer have Wi-Fi available to continue the Snapchat 

conversation with Lamberson, she asked him to send her text 

messages instead of using Snapchat.

The following unedited conversation took place, via text 

message, between the victim and Lamberson:

[Lamberson:] Would you really hook up with me? 

8:49 PM

[The victim:] Idk your drink and I’m got little sister 

8:49 PM

[Lamberson:] Its OK I know you wouldn’t 8:51 PM

[The victim:] I’m sorry. And you got a wife for that 

8:51 PM

[Lamberson:] I know but I want u 8:53 PM

[The victim:] Why 8:53 PM

[The victim:] Text me bc I don’t have WiFi 8:55 PM

[Lamberson:] Your super hot and show you how good 

it feels 8:56 PM

[The victim:] Ohhhhhhhhhhh 8:57 PM

[Lamberson:] Ya and I have been with another woman 

in five years and really like you 9:08 PM

[Lamberson:] Haven’t been with 9:15 PM

[The victim:] Cody I’m your little sister 9:18 PM

[Lamberson:] I know it makes me want it a little more 

but I’ll stop and not bring it up again I’m sorry 9:20 PM

[The victim:] You shouldn’t even been asking 9:21 PM

[Lamberson:] It was a joke 9:22 PM

[The victim:] Oh okaii sorry 9:22 PM

[The victim:] Goodnight love you 10:25 PM

[Lamberson:] KNIGHT love Ya too hun 10:26 PM

[The victim:] Talk to you tomorrow?? 10:26 PM

[Lamberson:] Of course boo 10:27 PM

The victim showed the texts to her foster mother, who called 

police. Lamberson was arrested and charged with child enticement, a Class ID felony. See Neb. Rev. Stat. § 28-320.02 

(Reissue 2016).

The trial in this matter was held on June 13, 2017. Although 

several witnesses testified at trial, the majority of the State’s 
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evidence was adduced through testimony from a Sarpy County 

sheriff’s deputy, Darin Morrissey; through testimony from the 

victim; through exhibit 1, an audio recording of Lamberson’s 

interview with law enforcement; and through another exhibit 

that contained screenshots of the text messages exchanged 

between Lamberson and the victim.

Morrissey is a computer and cell phone forensic examiner 

who investigates fraud and any cases involving computers and 

cell phones, which includes child pornography, child enticement, and some child abuse cases. On March 31, 2016, he was 

assigned a child enticement case involving Lamberson and a 

cell phone. On cross-examination, Morrissey testified that, during the interview with Lamberson, he asked Lamberson about 

the text that said, “Your super hot and show you how good 

it feels.” That text concerned Morrissey because it alluded to 

sexual contact; however, he admitted that there was nothing in 

the text directly referencing sexual contact.

On redirect examination, Morrissey was asked:

Q. In dealing with child enticement cases, are you 

familiar with the term “hook up”?

A. Yes.

. . . .

[Defense counsel]: Objection. Foundation, hearsay.

THE COURT: Sustained.

[The State]: Judge, can I ask on which portion?

THE COURT: Foundation.

[The State]: Thank you.

Q. . . . Sir, in child enticement cases, are you — do you 

have to be familiar with quote, unquote, lingo of people?

A. Yes.

Q. And what’s that mean?

At this point, defense counsel made another foundational 

objection which was overruled by the district court. Morrissey 

continued: “There are phrases for all different age groups that 

I have to be familiar with. Many of the types of cases — child 

enticement — are started over e-mails, text messages, applications which all deal with - . . . .” Defense counsel again 
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objected that the witness was reciting a narrative and that the 

answer was beyond the scope of the question. These objections 

were overruled, and the witness resumed:

All over messaging conversations. So I’ve seen lots of 

lingo, lots of phrases that — and know what they mean. 

That’s just part of my job.

Q. . . . Is it part of your job, in dealing with child 

enticement, sexual abuse, things of that nature, to know 

slang?

A. Yes.

Q. Why is that important?

A. Because that’s how they communicate. Shortened 

words, certain phrases mean certain things. They don’t 

spell it all out.

Q. So in that regard, what does “hook up” mean?

Defense counsel posed a foundational objection based on hearsay which was sustained by the court. The State argued that 

the defense opened the door for Morrissey’s opinion “because 

that’s what he was asking on cross-examination, his opinion 

as to what these mean. So I think he’s allowed to give his 

opinion to what that means if [defense counsel] already went 

through that with him.” The court repeated that it was sustaining the objection based upon foundation. The State continued 

its questioning:

Q. . . . Have you ever used the term “hook up”?

A. Yes.

Q. Have you ever heard other people use the term 

“hook up”?

A. Yes.

Q. What does it mean?

Defense counsel again posed a foundational objection which 

was overruled. Morrissey stated, “It’s in relation to getting 

together for sexual contact.”

Morrissey interviewed Lamberson on June 22, 2016, at the 

Sarpy County jail. An audio recording of that interview was 

received into evidence as exhibit 1. Morrissey was unaware 

at the time he went to the interview that Lamberson had been 
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appointed an attorney a few hours before the interview. He 

became aware that Lamberson had been appointed an attorney 

near the end of the interview.

The recording included a recitation by Morrissey of 

Lamberson’s Miranda rights. After being advised of his 

rights, Lamberson acknowledged that he understood his 

rights. Although Morrissey did not ask Lamberson if he was 

waiving his rights, Lamberson continued talking to Morrissey. 

During the interview, Lamberson admitted to the text message conversation with the victim but stated that it was “way 

out of context from what I remember it being” and that it 

was being “blown way out of proportion.” Lamberson told 

Morrissey that when he asked, “Would you really hook up 

with me?” in the text message, he did not mean “have sex 

with”; rather, he meant “link up,” which he explained was a 

meaning from his “military” background. He did not have an 

explanation for some of the other texts such as “[y]our super 

hot and show you how good it feels” and “I know it makes me 

want it a little more but I’ll stop and not bring it up again[,] 

I’m sorry.” He stated that he said that he had not been with 

another woman in 5 years because he had “been with [his] 

wife the whole time.” He stated that when he said, “[I] really 

like you,” it was “cause she’s my little sister. Of course I’m 

going to like her.” He further explained when he said, “It was 

a joke,” there were missing texts where he called himself 

“fat” and stated that the victim “wouldn’t want to hang out 

with [him].”

The victim testified as to the facts previously set forth. She 

also testified that she did not think Lamberson was joking 

when he sent the text messages, that the text messages made 

her feel “weird,” and that she was “creeped out” because 

Lamberson was her adopted brother. The victim also testified that she showed the texts from Lamberson to her foster mother, because her foster mother would regularly look 

through the victim’s cell phone and would have found out 

and because she “didn’t want it to happen again.” The victim 
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admitted that she did not feel threatened, intimidated, or 

coerced by Lamberson.

The defense did not present any evidence. The court found 

Lamberson guilty of the charged offense and sentenced him 

to 3 to 4 years’ imprisonment with credit for 2 days served. 

Lamberson has timely appealed to this court and is represented 

by different counsel than represented him at trial.

ASSIGNMENTS OF ERROR

Lamberson contends that there was insufficient evidence to 

support his conviction and that his trial counsel was ineffective by withdrawing his motion to suppress, failing to renew 

the motion during trial, and failing to adduce certain evidence 

in Lamberson’s defense.

STANDARD OF REVIEW

[1,2] An appellate court will sustain a conviction in a bench 

trial of a criminal case if the properly admitted evidence, 

viewed and construed most favorably to the State, is sufficient 

to support that conviction. State v. Schuller, 287 Neb. 500, 

843 N.W.2d 626 (2014). In making this determination, we do 

not resolve conflicts in the evidence, pass on the credibility of 

witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder’s province for disposition. Id. Instead, the relevant question is whether, after viewing 

the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. Id.

[3] When a defendant’s trial counsel is different from his 

or her appellate counsel, all issues of ineffective assistance 

of trial counsel that are known to the defendant or are apparent from the record must be raised on direct appeal. State v. 

McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018). If the issues 

are not raised, they are procedurally barred. Id.

[4,5] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of 

law, which turns upon the sufficiency of the record to address 
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the claim without an evidentiary hearing or whether the claim 

rests solely on the interpretation of a statute or constitutional 

requirement. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 

(2018), disapproved on other grounds, State v. Avina-Murillo, 

301 Neb. 185, 917 N.W.2d 865. An appellate court determines 

as a matter of law whether the record conclusively shows that 

(1) a defense counsel’s performance was deficient or (2) a 

defendant was or was not prejudiced by a defense counsel’s 

alleged deficient performance. Id. An ineffective assistance 

of counsel claim will not be addressed on direct appeal if it 

requires an evidentiary hearing. State v. Hill, 298 Neb. 675, 

905 N.W.2d 668 (2018).

ANALYSIS

Sufficiency of E

Lamberson was tried and convicted of violating 

§ 28-320.02(1). The State concedes in its brief on appeal that 

the applicable portion of § 28-320.02(1) provides: “No person 

shall knowingly solicit, coax, entice, or lure (a) a child sixteen 

years of age or younger . . . by means of an electronic communication device as that term is defined in section 28-833, to 

engage in an act which would be in violation of section 28-319 

. . . .” The applicable portion of Neb. Rev. Stat § 28-319(1) 

(Reissue 2016) provides: “Any person who subjects another 

person to sexual penetration . . . (c) when the actor is nineteen 

years of age or older and the victim is at least twelve but less 

than sixteen years of age is guilty of sexual assault in the first 

degree.” Taken together, there would be sufficient evidence 

to support Lamberson’s conviction for enticement if the combined Snapchat and text communications with the 15-year-old 

victim constituted a knowing solicitation, coaxing, enticement, 

or luring of the victim to engage with him in an act involving 

sexual penetration.

Lamberson does not challenge that he is 19 years of age 

or older, that the victim was at least 12 years of age but 

less than 16 years of age, or that the medium used for 
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communication was an electronic device as defined by statute. 

Instead, Lamberson argues that the substance of his communications with the victim did not amount to a knowing solicitation, coaxing, enticement, or luring of the victim and that the 

language used by him did not request the victim to engage 

in an act involving sexual penetration. We will analyze these 

arguments independently.

The Nebraska Supreme Court had occasion to interpret the 

language of § 28-320.02(1) in State v. Knutson, 288 Neb. 823, 

852 N.W.2d 307 (2014). In Knutson, the Supreme Court held:

As relevant here, the conduct prohibited by 

§ 28-320.02(1) is using an electronic communication 

device to knowingly “solicit, coax, entice, or lure” a child 

16 years of age or younger “to engage in an act which 

would be in violation of” § 28-319.01. The verbs in this 

sentence all deal with the act of persuading—in this 

context, persuading someone 16 years of age or younger 

to perform a sexual act that is illegal under the specified statutes.

288 Neb. at 841, 852 N.W.2d at 322.

In the context of the case presently before this court, in 

order to constitute a violation of § 28-320.02(1), the language 

used by Lamberson in his Snapchat and text communications 

must constitute knowing persuasion by him to have the victim 

perform a sexual act involving penetration. “Sexual penetration” is defined by Nebraska statute as

sexual intercourse in its ordinary meaning, cunnilingus, 

fellatio, anal intercourse, or any intrusion, however slight, 

of any part of the actor’s or victim’s body or any object 

manipulated by the actor into the genital or anal openings 

of the victim’s body which can be reasonably construed 

as being for nonmedical or nonhealth purposes. Sexual 

penetration shall not require emission of semen.

Neb. Rev. Stat. § 28-318(6) (Reissue 2016).

Applying our standard of review, after viewing the evidence in the light most favorable to the State, we agree that a 
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reasonable trier of fact could have found that Lamberson’s language used in his electronic communications constituted language of persuasion. The more difficult question here involves 

the proposed act that Lamberson was attempting to persuade 

the victim to perform.

In this case, Lamberson specifically requested the 15-yearold victim to “hook up” with him. As stated before, in this 

particular case, in order to be a violation of § 28-320.02(1), a 

reasonable trier of fact needed to find that the term “hook up” 

was a solicitation by Lamberson for the 15-year-old victim to 

engage in an act involving sexual penetration. We acknowledge 

that the term “hook up” can have multiple meanings; however, 

we review the meaning of the term in the context of the other 

evidence in this case.

In analyzing this matter, the primary evidence in this case 

involved the language of the texts, the victim’s testimony, 

Lamberson’s interview with police, and the testimony of computer and cell phone forensic examiner Morrissey, who investigated cases of fraud involving computers and cell phones, 

which includes child pornography, child enticements, and some 

child abuse cases. When asked about the meaning of the term 

“hook up,” Morrissey testified that it is a term commonly used 

in connection with requested “sexual contact.” The issue in 

this case is not whether Lamberson was attempting to persuade the victim to engage in an act involving any sexual 

contact, but, rather, the issue here is whether Lamberson was 

attempting to persuade the victim to engage in an act involving 

sexual penetration.

We next note the remaining language of the text exchange. 

In addition to asking the victim to “hook up,” Lamberson 

attempted to explain that he had not “been with another woman 

in five years” and that he wanted to show the victim “how good 

it feels.” The victim responded to Lamberson that “you got a 

wife for that” and otherwise resisted Lamberson’s advances, 

including reminding him that she was his “little sister.”
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[6,7] Again, the issue here is whether any reasonable trier 

of fact would have found that Lamberson used language which 

demonstrates a knowing attempt to persuade the 15-year-old 

victim to engage in a sexual act involving penetration. We note 

that “[d]ue process does not require an appellate court, upon 

review of a criminal conviction, to take the inference most 

favorable to the accused.” State v. Pierce, 248 Neb. 536, 547, 

537 N.W.2d 323, 330 (1995), citing Jackson v. Virginia, 443 

U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). “When 

reviewing a criminal conviction, the relevant question for 

an appellate court is ‘whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” Id., quoting Jackson, supra. 

“‘This familiar standard gives full play to the responsibility of 

the trier of fact fairly to resolve conflicts in the testimony, to 

weigh the evidence, and to draw reasonable inferences from 

basic facts to ultimate facts.’” Id. at 548, 538 N.W.2d at 330, 

quoting Jackson, supra.

Here, we conclude that a reasonable trier of fact could find 

the language used by Lamberson in his texts constituted an 

attempt to persuade the victim to engage in a sexual act involving penetration. Because we find that a reasonable trier of fact 

could reach that conclusion, we reject his argument that the 

evidence was insufficient to support his conviction.

Ineffective Assi

of Counse

Lamberson contends that his trial counsel was ineffective 

by withdrawing his motion to suppress, failing to renew the 

motion during trial, and failing to adduce certain evidence in 

his defense.

[8] The fact that an ineffective assistance of counsel claim 

is raised on direct appeal does not necessarily mean that it 

can be resolved. State v. Wells, 300 Neb. 296, 912 N.W.2d 

896 (2018). Such a claim may be resolved when the record on 
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direct appeal is sufficient to either affirmatively prove or rebut 

the merits of the claim. Id. The record is sufficient if it establishes either that trial counsel’s performance was not deficient, 

that the appellant will not be able to establish prejudice, or that 

trial counsel’s actions could not be justified as a part of any 

plausible trial strategy. Id.

[9] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984), the defendant must show 

that his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s defense. State v. McGuire, 299 Neb. 762, 910 N.W.2d 

144 (2018).

Motion to Suppr

Lamberson first claims that trial counsel’s withdrawal of the 

motion to suppress Lamberson’s statement to Morrissey and 

failure to renew the motion during trial erroneously allowed 

the court to hear Lamberson’s statement that was made “after 

an attorney had been appointed, but without the attorney’s 

knowledge or Lamberson being allowed to speak with [his] 

attorney.” Brief for appellant at 21. The full statement was 

admitted into evidence, and therefore, the record on appeal is 

sufficient for us to review this claim.

[10] At the time of Lamberson’s custodial interrogation 

by Morrissey, an attorney had been appointed to represent 

Lamberson. Thus, we interpret Lamberson’s claim as referencing a violation of his Sixth Amendment right to counsel. 

“[T]he Sixth Amendment guarantees a defendant the right to 

have counsel present at all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 

2079, 173 L. Ed. 2d 955 (2009). Interrogation by the State is 

one of those critical stages. Id.

[11] Lamberson appears to argue that his rights were violated because Morrissey conducted a custodial interrogation 

of Lamberson after an attorney had been appointed and did 
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so without contacting the attorney prior to the interview or 

allowing Lamberson to speak to him. Contrary to Lamberson’s 

argument, the U.S. Supreme Court has rejected the position 

that a defendant, who was represented by counsel, cannot 

be approached by an investigator of the State and asked to 

consent to interrogation. See id. Rather, the Court held that 

“[w]hat matters for Miranda . . . is what happens when the 

defendant is approached for interrogation, and (if he consents) 

what happens during the interrogation—not what happened 

at any preliminary hearing.” Montejo, 556 U.S. at 797. See 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966). The Court noted that the Sixth Amendment right 

to counsel “may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent.” 

Montejo, 556 U.S. at 786. Further, the defendant may waive 

the right regardless of whether or not he is already represented 

by counsel and the decision to waive need not itself be counseled. Id.

[W]hen a defendant is read his Miranda rights (which 

include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does 

the trick, even though the Miranda rights purportedly 

have their source in the Fifth Amendment: “‘As a general 

matter . . . an accused who is admonished with the warnings prescribed by the Court in Miranda . . . has been 

sufficiently apprised of the nature of his Sixth amendment rights, and of the consequences of abandoning those 

rights, so that his waiver on this basis will be considered 

a knowing and intelligent one.’ . . .”

Montejo, 556 U.S. at 786-87 (emphasis in original). Thus, the 

doctrine established by Miranda protects “the right to have 

counsel present during custodial interrogation—which right 

happens to be guaranteed (once the adversary judicial process 

has begun) by two sources of law”—the Fifth Amendment and 

the Sixth Amendment. Montejo, 556 U.S. at 795 (emphasis in 

original). “Since the right under both sources is waived using 
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the same procedure, . . . doctrines ensuring voluntariness of 

the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.” Montejo, 556 U.S. 

at 795.

[12] Pursuant to the U.S. Supreme Court’s dictates in 

Montejo, supra, even though an attorney had been appointed, 

Morrissey had the right to request that Lamberson consent to 

an interview so long as Lamberson was advised of his Miranda

rights and waived them. Lamberson’s claims to the contrary 

are without merit, and his claim of ineffectiveness of counsel 

on this basis must fail. Defense counsel is not ineffective for 

failing to raise an argument that has no merit. State v. Burries, 

297 Neb. 367, 900 N.W.2d 483 (2017).

Lamberson also claims that his statements and admissions 

should have been challenged as being obtained in violation 

of his Miranda rights, his rights under the Fifth and Sixth 

Amendments to the U.S. Constitution, and his rights under 

article I, §§ 3 and 12, of the Nebraska Constitution. The record 

on appeal is likewise sufficient for us to review this claim.

Exhibit 1 consists of an audio recording of Morrissey’s 

interview with Lamberson. At the beginning of the interview, 

Morrissey read Lamberson his Miranda rights and Lamberson 

stated that he understood them; however, he never expressly 

waived his Miranda rights. A finding that Lamberson voluntarily waived his Miranda rights would result in the finding 

that he waived his right to counsel under both the Fifth and 

Sixth Amendments. See Montejo v. Louisiana, 556 U.S. 778, 

129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009).

[13,14] Although Lamberson never specifically stated 

that he waived his Miranda rights, this is not dispositive. A 

Miranda waiver may be either express or implied. See State v. 

Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). An express 

waiver of a suspect’s Miranda rights may be in writing or 

oral. See Hernandez, supra. In this case, there was no express 

waiver of Miranda rights by Lamberson.
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STATE v. LAMBERSON

Cite as 26 Neb. App. 642

A Miranda waiver may also be implied. See Hernandez, 

supra. See, also, Berghuis v. Thompkins, 560 U.S. 370, 130 S. 

Ct. 2250, 176 L. Ed. 2d 1098 (2010).

A “defendant’s silence, coupled with an understanding 

of his rights and a course of conduct indicating waiver,” 

may establish a valid, implied waiver. [North Carolina v. 

Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 

286 (1979).] Thus, “[w]here the prosecution shows that a 

Miranda warning was given and that it was understood by 

the accused, an accused’s uncoerced statement establishes 

an implied waiver of the right to remain silent. [Berghuis, 

560 U.S. at 384.]

Hernandez, 299 Neb. at 919, 911 N.W.2d at 544.

The Nebraska Supreme Court considered a comparable factual situation in Hernandez, supra, where the defendant was 

advised of his Miranda rights and indicated that he understood 

them, but the issue remained regarding whether he knowingly 

and voluntarily waived those rights. The court held that “by 

voluntarily speaking with the investigators, [the defendant] 

impliedly waived his rights.” Hernandez, 299 Neb. at 919, 911 

N.W.2d at 544.

Similarly, in U.S. v. Umana, 750 F.3d 320 (4th Cir. 2014), 

a defendant waived his Miranda rights when he stated that 

he understood them and then talked to detectives. The Fourth 

Circuit Court of Appeals stated:

“To effectuate a waiver of one’s Miranda rights, a suspect need not utter any particular words.” . . . A suspect 

impliedly waives his Miranda rights when he acknowledges that he understands the Miranda warning and then 

subsequently is willing to answer questions. . . . That is 

precisely what happened in this case.

Umana, 750 F.3d at 344.

The factual situation presented to this court for determination does not differ in any significant respect. Morrissey 

informed Lamberson of his Miranda rights, and Lamberson 

expressly stated that he understood those rights. Lamberson 
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26 Nebraska Appellate Repor

STATE v. LAMBERSON

Cite as 26 Neb. App. 642

went on to willingly engage in a dialogue with Morrissey in 

which Lamberson both asked questions and answered questions. Lamberson’s actions constitute an implied waiver of his 

Miranda rights. As such, Lamberson’s counsel was not ineffective for failing to challenge that Lamberson’s statements 

and admissions were obtained in violation of his Miranda

rights, his rights under the Fifth and Sixth Amendments to 

the U.S. Constitution, and his rights under article I, §§ 3 and 

12, of the Nebraska Constitution. As we mentioned before, 

defense counsel is not ineffective for failing to raise an argument that has no merit. State v. Burries, 297 Neb. 367, 900 

N.W.2d 483 (2017). Thus, we reject Lamberson’s claims that 

his trial counsel was ineffective by withdrawing his motion 

to suppress, failing to renew the motion during trial, and 

failing to challenge his statements and admissions as being 

obtained in violation of his Miranda rights, his rights under 

the Fifth and Sixth Amendments to the U.S. Constitution, 

and his rights under article I, §§ 3 and 12, of the Nebraska 

Constitution.

Failure to Adduce Evid

Lamberson’s Def

Lamberson further contends that his trial counsel was ineffective for failing to adduce evidence in Lamberson’s defense. 

Specifically, he contends that trial counsel failed to adduce 

any evidence to dispute Morrissey’s testimony regarding the 

definition of the term “hook up,” failed to “request the ability 

to re-cross . . . Morrissey” regarding his testimony or to call 

Morrissey as a witness, and failed to present any evidence to 

refute Morrissey’s testimony. Brief for appellant at 22.

The fact that an ineffective assistance of counsel claim is 

raised on direct appeal does not necessarily mean that it can 

be resolved. The determining factor is whether the record is 

sufficient to adequately review the question. State v. Hill, 298 

Neb. 675, 905 N.W.2d 668 (2018). An ineffective assistance 

of counsel claim will not be addressed on direct appeal if it 
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26 Nebraska Appellate Repor

STATE v. LAMBERSON

Cite as 26 Neb. App. 642

requires an evidentiary hearing. Id. The record before this court 

is insufficient to address this allegation on direct appeal.

CONCLUSION

Having found that the evidence was sufficient to support 

Lamberson’s conviction, we affirm his conviction and sentence. 

We find that the record is sufficient to review Lamberson’s 

claim that his trial counsel was ineffective by withdrawing 

his motion to suppress and failing to renew the motion during 

trial, which allowed the court to hear Lamberson’s statement 

to Morrissey after an attorney had been appointed, but without 

the attorney’s knowledge or Lamberson’s being allowed to 

speak with his attorney, and we find that this claim is without 

merit. Likewise, the record is sufficient to review Lamberson’s 

claim that his trial counsel was ineffective by failing to challenge his statements and admissions as being obtained in 

violation of his Miranda rights, his rights under the Fifth and 

Sixth Amendments to the U.S. Constitution, and his rights 

under article I, §§ 3 and 12, of the Nebraska Constitution, and 

we find that this claim is without merit. The record before this 

court is not sufficient to address Lamberson’s claim that his 

trial counsel was ineffective for failing to adduce any evidence 

in his defense to dispute Morrissey’s testimony regarding the 

definition of the term “hook up,” failing to request the ability 

to re-cross-examine Morrissey regarding his testimony or call 

Morrissey as a witness, and failing to present any evidence to 

refute Morrissey’s testimony.

Affirmed