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298 Nebraska Report

STATE v. NOLT

Cite as 298 Neb. 910

State of Nebraska, appellee, v.

Michael A. Nolt, appell

___ N.W.2d ___

Filed February 9, 2018. No. S-17-073.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

3. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. When reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court for clear 

error. With regard to the questions of counsel’s performance or prejudice 

to the defendant as part of the two-pronged test articulated in Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

an appellate court reviews such legal determinations independently of 

the lower court’s decision.

4. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

5. Search and Seizure: Search Warrants. In the absence of a clear showing of prejudice, the failure to comply strictly with postservice statutory 

requirements will not invalidate a search conducted pursuant to an otherwise valid warrant.

6. ____: ____. A failure in the ministerial act of returning and filing a 

search warrant does not void the warrant.

Nebraska Supreme Court Online Library

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

03/30/2018 08:14 AM CDT
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7. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel, the defendant must show that counsel’s representation fell below an objective standard of reasonableness and, but for 

counsel’s deficient performance, there is a reasonable probability that 

the result of the trial would have been different. A reasonable probability 

is a probability sufficient to undermine confidence in the outcome of 

the trial.

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. The determining factor is 

whether the record is sufficient to adequately review the question.

9. 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.

10. Due Process: Police Officers and Sheriffs: Identification Procedures. 

Due process concerns arise when law enforcement officers use unnecessarily suggestive means to procure an identification.

11. Police Officers and Sheriffs: Identification Procedures: Pretrial 

Procedure. Even when the police use unnecessarily suggestive means to 

procure an identification, the suppression of the resulting identification 

is not the inevitable consequence. Instead, the trial judge must screen the 

evidence for reliability pretrial.

12. ____: ____: ____. Identification evidence must be screened for reliability pretrial whenever it is obtained via unnecessarily suggestive procedures arranged by law enforcement officers.

13. Rules of Evidence: Hearsay. For a statement to qualify as an excited 

utterance, the following criteria must be established: (1) There must 

have been a startling event, (2) the statement must relate to the event, 

and (3) the statement must have been made by the declarant under the 

stress of the event.

14. Rules of Evidence: Hearsay: Proof. The key requirement to the excited 

utterance exception is spontaneity, which requires a showing that the 

statements were made without time for conscious reflection.

15. Rules of Evidence: Hearsay. An excited utterance does not have to be 

contemporaneous with the exciting event. It may be subsequent to the 

event if there was not time for the exciting influence to lose its sway. 

The true test is not when the exclamation was made but whether, under 

all the circumstances, the declarant was still speaking under the stress of 

nervous excitement and shock caused by the event.

16. ____: ____. Facts relevant to whether a statement is an excited utterance 

include the declarant’s manifestation of stress, the declarant’s physical 

condition, and whether the declarant spoke in response to questioning.
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17. Rules of Evidence: Hearsay: Police Officers and Sheriffs. Statements 

made in response to questions from law enforcement in particular do 

not generally have inherent guarantees of reliability and trustworthiness. But the declarant’s answer to a question may still be an excited 

utterance if the context shows that the statement was made without 

conscious reflection.

18. Search and Seizure: Police Officers and Sheriffs: Evidence: Proof. 

Under the inevitable discovery doctrine, evidence obtained without a 

valid warrant is nonetheless admissible if the State shows by a preponderance of the evidence that the police would have obtained the disputed 

evidence by proper police investigation entirely independent of the illegal investigative conduct.

19. Constitutional Law: Search and Seizure. For purposes of the Fourth 

Amendment, a search occurs when the government violates a subjective 

expectation of privacy that society recognizes as reasonable.

20. ____: ____. For purposes of the Fourth Amendment, a seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.

21. ____: ____. As a general rule, a person has no reasonable expectation of 

privacy in places readily accessible to the public.

22. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and 

Error. When reviewing a claim of ineffective assistance of counsel, trial 

counsel is afforded due deference to formulate trial strategy and tactics, 

and an appellate court will not second-guess reasonable strategic decisions by counsel.

23. Effectiveness of Counsel: Presumptions. When considering whether 

trial counsel’s performance was deficient, there is a strong presumption 

that counsel acted reasonably.

Appeal from the District Court for Douglas County: Timoth

P. Burns, Judge. Affirm

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

appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Funke, J
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Kelch, 

I. NATURE OF CASE

After a jury trial, Michael A. Nolt was convicted of first 

degree murder, manslaughter, two counts of use of a deadly 

weapon to commit a felony, and possession of a deadly weapon 

by a prohibited person. Nolt appeals his convictions, alleging 

that evidence obtained pursuant to an alleged invalid warrant 

should have been excluded. Nolt also alleges three ineffective 

assistance of counsel claims.

II. FACTS

At around 2:11 a.m., on October 10, 2015, Omaha police 

received a report of a shooting at a residence in the northwest 

precinct of Omaha, Nebraska. After knocking and receiving no 

response, police entered the residence and immediately discovered the motionless, wounded body of Aurelius Hassell lying 

on the couch with his sweatpants pulled down to his knees. 

They then heard a female voice coming from down the hallway and found Tommynique Valentine, who advised them that 

she had been shot in the leg. In another bedroom, six children 

were found unharmed. Officers then asked Valentine if there 

was anyone else in the house, and she told them about another 

victim, Malquan King, in a bedroom closet. When an officer 

went to check on King, he was motionless and not breathing. 

King and Hassell were later pronounced dead. In connection 

with the shooting, Nolt was charged with first degree murder, 

attempted murder, and use of a firearm to commit a felony, 

among other charges.

At trial, the State called a number of witnesses. Valentine 

testified about the events that occurred at her house on the 

night of the shootings, and officers testified about the investigation that followed. The State also introduced redacted versions of telephone calls that Nolt made to his mother while in 

jail. After the State rested, Nolt testified in his own defense.

1. Night of Shootin

At trial, Valentine testified about the events that occurred at 

her house the night of the shootings. She testified that at the 
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time of the incident, she was in a relationship with King. King 

was coming back to Omaha after traveling with his friend, 

Hassell, and another man whom Valentine had never met. 

According to Valentine, King had referred to this latter person 

as his “‘white homeboy.’”

Valentine and King had planned for King to stay the night at 

Valentine’s house that night. Valentine had been in contact with 

him before she fell asleep around 10 p.m. on October 9, 2015. 

At approximately 2 a.m., the next day, she awoke to the sound 

of the doorbell. King, Hassell, and the white male were outside, and a white Chevrolet Impala was parked in the driveway. 

Valentine let King and Hassell into the house, and they talked 

in the front room for a few minutes before Hassell went back 

outside. Hassell then came back in and asked if the white male 

could use the bathroom. Valentine said, “Sure.”

According to Valentine, she walked back to her bedroom 

with King while Hassell stayed in the front room. Valentine 

testified that Hassell was sitting on the couch and was “on his 

phone.” When Valentine got to her bedroom, she discovered 

her 3-year-old daughter was asleep on the bed, so she picked 

her daughter up and carried her to a bedroom where other children were sleeping. As Valentine carried her daughter down 

the hall, she crossed paths with the white male who was on 

his way to the bathroom. The white male nodded his head, and 

Valentine said, “[H]ello.”

Valentine testified that she got “a good look” at the white 

male. She described him as “clean cut” and wearing glasses, 

a white long-sleeved dress shirt, khaki pants, and black 

dress shoes.

While Valentine was putting her daughter to bed, King got 

ready for bed. According to Valentine, King had taken off his 

clothes and placed them in her hamper. (The clothes were later 

found folded on the bed.) Valentine sat on the bed and waited 

for the white male and Hassell to leave so that she could turn 

off the lights and lock her door.

A moment later, the bathroom door opened and Valentine 

heard “pop, pop, popping sounds.” Unsure of what the sound 
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was, she told King to go check it out. Instead, King asked 

Valentine if she had a gun. Valentine then became worried, 

and she went and hid in her closet. King was on his way 

to hide in the closet with Valentine when Valentine heard 

louder popping noises and saw King’s face change. King had 

been shot.

Valentine did not see the shooter, but heard the sound of 

dress shoes walking away down the hall. She then heard more 

shots fired. Next, Valentine heard the sound of dress shoes 

walking back to the bedroom and heard a voice say, “Talk 

to me, Talk to me. Are you okay?” Valentine did not make a 

sound. After that, additional shots were fired and Valentine was 

struck in the leg. Valentine then heard the sound of shoes again 

and heard the front door open and close. After she heard the 

front door close, Valentine came out of the closet, grabbed her 

cell phone from the nightstand, and went back into the closet 

to call the 911 emergency dispatch service.

Valentine was taken to a hospital for treatment. As she was 

being transported to an ambulance, she saw that the white 

Impala was gone.

2. Investigat

Omaha police officers testified at trial about the investigation that followed the shootings. When officers arrived at the 

scene, they found Hassell deceased in the living room and 

King deceased in the bedroom. They also found a number of 

gun shells throughout the house. Photographs of the scene were 

entered into evidence.

The photographs show Hassell lying on the couch with his 

feet on the floor and his hands curled up near his face. One 

cell phone was on the ground between Hassell’s feet, and 

another one was on the couch. King was found lying just inside 

Valentine’s bedroom closet. Two cell phones were found in 

the bedroom, one on the bed and one on the ground near the 

bedroom door.

King’s cell phone contained information that eventually 

led police to Nolt. From King’s cell phone, a detective in the 
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digital forensics unit was able to retrieve photographs and the 

Global Positioning System (GPS) coordinates of where the 

photographs were taken. One of the photographs was a “selfie” 

of King—a photograph King had taken of himself, a week 

before his death. Nolt was in the background. From the GPS 

coordinates imbedded in the photograph’s file, the detective 

determined that the photograph was taken at a hotel in Fort 

Wayne, Indiana. An officer investigating the case contacted 

the hotel’s manager. The officer asked the manager if either 

King or Hassell had rented a room there. The manager indicated that neither had. Later, however, the manager called the 

officer back to provide further information that she felt might 

be relevant to their investigation, including Nolt’s name. The 

manager also provided officers with still photographs from 

the hotel’s surveillance video showing Nolt talking to front 

desk staff.

Nolt was featured in another photograph on King’s cell 

phone. The GPS information imbedded in that photograph 

indicated that it was taken 1 week before King’s death at a car 

rental company in Fort Wayne.

As part of their investigation, officers spoke to a couple of 

King’s friends. One of these friends, Alejandro Luna, testified 

at trial that Nolt was traveling with King and Hassell because 

they could not get a rental car in their name, but Nolt got one 

for them in his name.

After police learned Nolt’s name and other details about the 

rental vehicle from the car rental company, they sought and 

received a search warrant for OnStar Corporation (OnStar), 

which services GPS devices in vehicles, to provide the rental 

car’s GPS data to police. The Impala was tracked to a residence 

in Mesa, Arizona. Information regarding the case was relayed 

to Mesa police, and a local task force went to the residence. 

Members of the task force saw Nolt and another male leave 

the residence in the Impala, and they followed the two men to 

a nearby discount department store. Nolt went into the store 

and purchased .40-caliber ammunition. After Nolt returned to 
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the Impala, the task force took Nolt into custody in the store 

parking lot.

Later that day, police executed a search warrant at the 

Mesa residence. They found a black duffelbag containing 

items belonging to Nolt, including an Indiana driver’s license, 

an Arizona identification card, and a .40-caliber Smith & 

Wesson handgun, the same caliber of firearm used to kill King 

and Hassell.

Nolt’s cell phone records were also subpoenaed as part of 

the investigation. An officer who analyzed the records testified that the records show that Nolt placed a call from Walnut, 

Iowa, at 3:14 a.m., approximately 1 hour after the shooting. 

Later that morning, another call was placed from Kansas City, 

and at 6:30 p.m., in the Denver, Colorado, area. The next day 

calls were made from Santa Fe and Albuquerque, New Mexico, 

and Phoenix, Arizona.

3. Jail Calls

The State offered as exhibits recordings of three telephone 

calls Nolt made to his mother while in jail. Redacted versions 

of the recordings were admitted into evidence.

In the first call, Nolt and his mother were discussing where 

his glasses were. His mother told him that the detective told 

her that they did not have Nolt’s glasses. Nolt told her, “They 

got all my glasses.” He told her that one pair of glasses was 

“wherever the gun was at” and that “[m]y glasses were in 

my suitcase.”

In the second call, Nolt told his mother, “Hey, you know 

what some guys were saying?” He said, “they say, ‘You were 

one shot away,’” and he laughed. His mother asked him, 

“What’s that mean?” Nolt replied that “[Valentine] should have 

been killed, too.” Nolt laughed again. Then his mother laughed 

and said, “You know I said the same thing? I said . . . ‘Your 

aim ain’t very good, is it?’ Didn’t you have your glasses on you 

. . . ?” Nolt and his mother laughed. His mother said, “Right?” 

Nolt laughed again and said, “Oh, I don’t know anything about 

what you’re talking about.” They both laughed again.
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In the third call, Nolt told his mother, “[Valentine] was so 

mad at me, you would think I killed her boyfriend or something.” Nolt then laughed.

4. Nolt’s Testimo

Nolt ultimately testified that he shot King and Hassell in 

self-defense.

Nolt testified that a couple of weeks before the incident in 

Omaha, King, Hassell, and Luna were shot at outside of an 

apartment building by “a tall black guy.” At that time, Hassell 

was shot in the buttocks.

Nolt also testified about the days leading up to the shooting 

in Omaha. He testified that he, King, and Hassell were traveling together and that they had gone to Kansas City to pick up 

some of Hassell’s property and then to Omaha to see King’s 

girlfriend, Valentine.

Nolt then testified about the events that occurred at 

Valentine’s house on the night of the shootings. He testified 

that when they arrived at Valentine’s house, he asked to go 

inside and use the bathroom. When he went inside, he saw 

Hassell sitting on the couch in the living room with a gun and 

a bag of marijuana out. According to Nolt, after he returned to 

the living room from using the bathroom, he told Hassell that 

he was leaving and asked for the car keys. Nolt claimed Hassell 

then said, “no, you ain’t going anywhere” and grabbed his gun, 

so Nolt “fired on him.” Nolt testified that he then heard King 

asking for a gun, so he went to the bedroom and shot King as 

well. When he returned to the living room, Hassell “jump[ed] 

at” Nolt and Nolt fired the gun again. Afterward, Nolt drove 

to Arizona to stay with a friend, and on the way, he threw 

Hassell’s gun away at a rest stop.

Nolt testified that to get money in Arizona, he sold the 

property that Hassell had picked up in Kansas City, along with 

some video games that King had stolen a few days before the 

shooting. On cross-examination, Nolt testified that he knew 

Hassell carried a lot of cash on him.
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5. Verdicts and Se

The jury convicted Nolt of first degree murder for the 

killing of King, manslaughter for the killing of Hassell, two 

counts of use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. He was 

acquitted on the charges related to the shooting of Valentine. 

He was sentenced to life in prison for King’s murder, to 45 to 

50 years’ imprisonment for use of a deadly weapon to commit 

a felony, to 18 to 20 years’ imprisonment for the manslaughter 

of Hassell, to 18 to 20 years’ imprisonment for use of a deadly 

weapon to commit a felony, and to 45 to 50 years’ imprisonment for possession of a deadly weapon by a prohibited 

person. All five of Nolt’s sentences were to be served consecutively, resulting in an aggregate sentence of life imprisonment 

plus 126 to 140 years’ imprisonment.

Additional facts are set forth below as they are relevant for 

analyzing the issues presented.

III. ASSIGNMENTS OF ERROR

Nolt assigns that the district court erred when it permitted 

the State to introduce evidence derived from the warrant for 

Nolt’s GPS data. Nolt also assigns that his trial counsel was 

ineffective for failing to object to an officer’s hearsay statement, failing to move to suppress Valentine’s in-court identification, and failing to “adequately investigate and present 

several aspects of Nolt’s defense.” Finally, Nolt assigns that 

the cumulative effect of the ineffective assistance provided 

by trial counsel deprived Nolt of his constitutional right to a 

fair trial.

IV. STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of 
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law that an appellate court reviews independently of the trial 

court’s determination.1

[2] Statutory interpretation presents a question of law, which 

we review independently of the lower court’s determination.2

[3] Appellate review of a claim of ineffective assistance of 

counsel is a mixed question of law and fact.3 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error.4 With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington,

5

 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision.6

V. ANALYSIS

Before delving into the assignments of error, we note that 

the State claims Nolt waived all error regarding the evidence 

that established Nolt as the shooter because Nolt himself testified that he was the shooter. Nolt, on the other hand, argues 

that such evidence should not have been admitted and that 

the error forced him to abandon a misidentification theory of 

defense and instead testify to support a self-defense theory. 

Nolt claims that if the evidence in question was not admitted, his misidentification theory would have remained a viable 

defense, and that he would not have testified, which would 

have resulted in a reasonable probability of a different outcome 

in his case.

[4] Because the case is resolvable without deciding this 

issue, we decline to address the State’s argument. An appellate 

1 State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017).

2 State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013).

3 State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

4 Id.

5 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

6 State v. Rocha, supra note 3.
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court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.7

1. Validity of OnStar Wa

Nolt first assigns that the district court erred in permitting 

the State to introduce evidence derived from a warrant that 

Nolt claims is invalid. Before analyzing Nolt’s claim, we set 

forth additional facts relevant to the issue presented.

(a) Additional Facts

Prior to trial, Nolt filed a motion to suppress any and all evidence derived from the Onstar search. This evidence includes 

property found during the search of the Impala and the search 

of the residence in Mesa. In the motion, Nolt alleged that the 

Onstar search was unlawful under the Fourth Amendment, 

because it was not authorized by a valid warrant.

Nolt claims that the warrant was invalid, because the officer 

who obtained the warrant failed to comply with the following 

statutory requirements:

(1) The warrant must be executed and returned within 

ten days after its date. The officer taking property under 

the warrant shall give to the person from whom or from 

whose premises the property was taken a copy of the warrant and a receipt for the property or shall leave the copy 

and the receipt at the place from which the property was 

taken. . . . The inventory shall be made in the presence of 

the applicant for the warrant and the person from whose 

possession or premises the property was taken if they are 

present, or in the presence of at least one credible witness 

other than the applicant for the warrant or the person from 

whose possession or premises the property was taken, and 

shall be verified by the officer. The judge or magistrate 

shall deliver a copy of the inventory upon request to the 

person from whom or from whose premises the property 

was taken and to the applicant for the warrant.

7 State v. Huston, ante p. 323, 903 N.W.2d 907 (2017).
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(2) The return and inventory required by subsection 

(1) of this section may be submitted to the magistrate or 

judge in person or by facsimile or other electronic means.8

The officer who obtained the warrant for OnStar gave a 

copy to a deputy U.S. marshal for service with OnStar. After 

that, the officer placed the original warrant in his desk drawer 

and did not return it until July 19, 2016, after an attorney for 

the State contacted him about it. When asked why he did not 

return it sooner, the officer stated, “I didn’t realize I had to. I 

didn’t look at it like a regular search warrant because I wasn’t 

looking for property. And then on top of that, we’re extremely 

busy. And once it was in my desk drawer, I honestly forgot 

about it.”

After the hearing, the district court found that the fact that 

the warrant was not returned within 10 days was purely a ministerial defect and did not negate the validity of the warrant. 

Therefore, it determined that the OnStar search was conducted 

pursuant to a valid warrant and thus denied Nolt’s motion to 

suppress the evidence derived from the OnStar search.

(b) Analysis

On appeal, Nolt argues that the district court erred in denying his motion to suppress. The State argues that suppression 

is not a remedy for the violation of § 29-815. It argues that 

the officer’s failure to return the warrant within the time limit 

provided by § 29-815 was purely a ministerial defect and that 

such errors do not render a warrant invalid. In this instance, 

we agree.

[5,6] We have previously stated that in the absence of a 

clear showing of prejudice, the failure to comply strictly 

with postservice statutory requirements will not invalidate 

a search conducted pursuant to an otherwise valid warrant.9

We have specifically stated that “a failure in the ministerial 

8 Neb. Rev. Stat. § 29-815 (Reissue 2016).

9 State v. Hinton, 226 Neb. 787, 415 N.W.2d 138 (1987); State v. McCown, 

189 Neb. 495, 203 N.W.2d 445 (1973).
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act of returning and filing a search warrant does not void the 

warrant.”10 Thus, here, where there is no clear showing of 

prejudice, the officer’s failure to return the warrant did not 

invalidate it.

In his reply brief, Nolt argues that although ministerial 

defects do not typically render a warrant invalid, such defects 

should render a warrant invalid when the police deliberately 

and intentionally disregard the ministerial rule, citing State v. 

Moore.

11 Nolt argues that the officer deliberately and intentionally disregarded § 29-815. We note that it is unclear whether 

Nolt made this argument to the trial court. His brief in support 

of his motion to suppress is not made a part of the record, and 

the trial court did not explicitly address that argument.

Regardless, we find that Moore does not apply to this case. 

In Moore, the Nebraska Court of Appeals was considering 

whether a violation of a procedural rule regarding nighttime 

searches invalidated a search, whereas here we were are dealing with a postservice statutory requirement, which is ministerial in nature.

Because the officer’s failure to timely return the warrant 

was a ministerial defect that did not prejudice Nolt’s trial, the 

failure to timely return it did not invalidate it, and Nolt’s first 

assignment of error is without merit.

2. Ineffective Assi

of Counsel Claim

[7] Nolt next asserts three claims of ineffective assistance 

of counsel. To prevail on a claim of ineffective assistance of 

counsel, the defendant must show that counsel’s representation 

fell below an objective standard of reasonableness and, but for 

counsel’s deficient performance, there is a reasonable probability that the result of the trial would have been different.12

10 State v. Hinton, 226 Neb. at 800, 415 N.W.2d at 146.

11 State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).

12 See Strickland v. Washington, supra note 5.
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A “reasonable probability is a probability sufficient to undermine confidence in the outcome [of the trial].”13

[8,9] The fact that an ineffective assistance of counsel claim 

is raised on direct appeal does not necessarily mean that it can 

be resolved.14 The determining factor is whether the record is 

sufficient to adequately review the question.15 An ineffective 

assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.16 We conclude 

that the record is sufficient to address all of Nolt’s ineffective 

assistance claims.

(a) Failure to Move to Suppress Valentine’s 

In-Court Identification of Nolt

Nolt assigns that his trial counsel was ineffective because 

he failed to move to suppress Valentine’s in-court identification of Nolt. Nolt argues that Valentine’s in-court identification should not have been admitted because it was corrupted 

by improper police conduct occurring after Valentine identified Nolt in a photographic lineup.

(i) Additional Facts

Prior to trial, no motion was made to suppress Valentine’s 

in-court identification of Nolt. At trial, Valentine was asked to 

identify the white male that was in her house on October 10, 

2015, and she indicated it was Nolt.

On cross-examination, Valentine was asked about her out-ofcourt identification of Nolt. The State objected to that line of 

questioning, and during a sidebar, counsel for Nolt explained 

that he was trying to show that Valentine’s in-court identification was unreliable because of police misconduct occurring after her out-of-court identification of Nolt. Counsel for 

13 Id., 466 U.S. at 694.

14 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

15 Id.

16 Id.
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Nolt represented to the court that a photographic lineup was 

done by one officer and that when another officer came in, 

Valentine asked him how she did. That officer allegedly stated, 

“Well, I’m not allowed to say, but by the way, as a result of 

your identification, we’re going to arrest somebody.” The 

State’s objection to the line of questioning was overruled, and 

defense counsel was allowed to question Valentine about statements made after the out-of-court identification. The following 

exchange occurred:

Q. . . . [D]id you inquire of that second officer, How’d 

I do?

A. I wouldn’t say I said that [sic] exact words.

Q. You wanted to know if you were correct?

A. I knew I was correct. I just . . .

Q. Did you ask, Was I correct?

A. I don’t recall.

Q. Do you recall him telling you, I’m not supposed to 

tell you that?

A. I recall him saying we can’t discuss, or something 

of that nature. I don’t know the specifics. That’s over a 

year ago.

Q. Okay. Do you recall him saying even though he’s 

not supposed to discuss specifics, he then discussed someone being arrested?

A. No. Because I didn’t . . .

Q. Okay. Nothing further on that subject.

(ii) Analysis

To prevail on this claim of ineffective assistance of counsel, Nolt must show that the failure to move to suppress 

Valentine’s in-court identification fell below an objective standard of reasonableness and that if such motion had been 

made, a reasonable probability exists that the result of the trial 

would have been different.17 However, if the motion would not 

17 See Strickland v. Washington, supra note 5.
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have been granted, then it cannot be said that trial counsel’s 

performance was deficient or that the result of the trial would 

have been different. Thus, we first consider whether a motion 

to suppress would have been successful.

[10,11] Due process concerns arise when law enforcement 

officers use unnecessarily suggestive means to procure an 

identification.18 But, even when the police use such a procedure, the U.S. Supreme Court has indicated that suppression of 

the resulting identification is not the inevitable consequence.19

Instead, the trial judge must screen the evidence for reliability pretrial.

Here, Nolt argues that a pretrial hearing would have 

revealed that Valentine’s in-court identification was too unreliable to be admissible. The State, on the other hand, argues 

that a pretrial hearing was not required because the in-court 

identification was not arranged by law enforcement. We agree 

with the State.

[12] Identification evidence must be screened for reliability 

pretrial whenever it is obtained via unnecessarily suggestive procedures arranged by law enforcement officers. Here, 

Nolt is not arguing that law enforcement arranged an unnecessarily suggestive pretrial photographic lineup or in-court 

identification. Instead, he argues that improper police conduct occurring after the first identification procedure tainted 

Valentine’s in-court identification. We are unaware of, and 

Nolt does not cite, any authority that requires a pretrial reliability screening in this situation. Instead, in such a case, 

we think it is the role of the jury, not the judge, to determine the reliability of such evidence, and it suffices to challenge reliability at trial through the mechanisms designed 

for that purpose, including cross-examination of the witness 

18 See Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 181 L. Ed. 2d 

694 (2012).

19 Id.
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making the identification.20 And that is exactly what Nolt’s 

counsel did.

Even assuming that the district court would have conducted 

a pretrial hearing on the reliability of Valentine’s in-court 

identification, the identification would only be suppressed if 

it was “‘so [unnecessarily] suggestive as to give rise to a very 

substantial likelihood of irreparable misidentification.’”21 In 

Manson v. Brathwaite,

22 the U.S. Supreme Court explained that 

“reliability is the linchpin in determining the admissibility of 

identification testimony.” It set forth the following reliability 

factors: “the opportunity of the witness to view the criminal at 

the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between 

the crime and the confrontation.”23 The Court explained that 

these factors are to be weighed against “the corrupting effect 

of the suggestive identification itself.”24

Based on the above factors, we conclude that the indicia of reliability outweigh any alleged corrupting influence. 

Valentine testified that she got “a good look” at Nolt on the 

night of the shootings. She was able to describe in detail what 

Nolt was wearing that night. From a photographic lineup, 

Valentine positively identified Nolt as the man who was in her 

house the night of the shooting. At trial, Valentine appeared 

confident in both that identification and her in-court identification of him. When asked if Nolt looked the same at trial as 

20 See id., 565 U.S. at 248 (holding that “the Due Process Clause does not 

require a preliminary judicial inquiry into the reliability of an eyewitness 

identification when the identification was not procured under unnecessarily 

suggestive circumstances arranged by law enforcement”).

21 Id., 565 U.S. at 238.

22 Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 

(1977).

23 Id.

24 Id.
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he did on the night of the shooting, Valentine testified that he 

had gained weight, but his facial features were the same. And 

importantly, Valentine had already positively identified Nolt in 

the photographic lineup before the alleged unnecessarily suggestive comment.

Because Valentine’s in-court identification was sufficiently 

reliable, any pretrial motion to suppress such identification 

would have been futile. Therefore, Nolt’s trial counsel was not 

ineffective for failing to move to suppress the identification, 

and Nolt’s assignment of error is without merit.

(b) Failure to Object to 

Hearsay Statement

Nolt also argues that his trial counsel was ineffective because 

he failed to object to an inadmissible hearsay statement, i.e., 

Valentine’s statement to an officer describing the shooter. 

Before analyzing this claim, we set forth additional facts relevant to the issue.

(i) Additional Facts

Officer Corey Gorden was one of the officers who responded 

to Valentine’s call. He rode on the ambulance with her and 

asked her questions on the way to the hospital. At trial, Gorden 

testified that when he asked Valentine who shot her, she 

described the person as a “nerdy, white male . . . with brownish blonde hair wearing a white dress shirt, tan pants, and dress 

shoes.” No objection was made to the statement.

On appeal, Nolt argues that his trial counsel was ineffective for failing to object to the above statement as hearsay. 

The State argues that trial counsel was not ineffective for not 

objecting because the statement is admissible under the excited 

utterance exception to the hearsay rule. Relevant to that exception, Gorden was asked about how Valentine appeared to him 

during the ambulance ride. Gorden responded, “Emotional. 

She had tears in her eyes and she was — seemed scared but 

still somewhat calm.” When asked what he meant by “calm,” 

Gorden stated that Valentine’s voice was not escalated, her 
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breathing was not labored, and she was “coherent to the . . . 

questions [she was asked].”

(ii) Analysis

[13,14] The parties agree that Valentine’s statement constituted hearsay, but disagree as to whether the excited utterance exception applies. For a statement to qualify as an 

excited utterance, the following criteria must be established: 

(1) There must have been a startling event, (2) the statement 

must relate to the event, and (3) the statement must have 

been made by the declarant under the stress of the event.25

The key requirement is spontaneity, which requires a showing that the statements were made without time for conscious 

reflection.26

Here, the startling event was the shooting, and Valentine’s 

statement related to the shooting because it described the 

shooter. Thus, the issue is whether Valentine’s statement was 

made under the stress of the shooting.

[15-17] An excited utterance does not have to be contemporaneous with the exciting event.27 It may be subsequent to 

the event if there was not time for the exciting influence to 

lose its sway.28 The true test is not when the exclamation was 

made but whether, under all the circumstances, the declarant was still speaking under the stress of nervous excitement 

and shock caused by the event.29 Relevant facts include the 

declarant’s manifestation of stress, such as “‘yelling,’” and the 

declarant’s physical condition.30 Also relevant is whether the 

declarant spoke in response to questioning.31 Statements made 

25 State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

26 Id.

27 State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).

28 Id.

29 Id.

30 Id. at 79, 858 N.W.2d at 550.

31 State v. Hale, supra note 27.
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in response to questions from law enforcement in particular do 

not generally have inherent guarantees of reliability and trustworthiness.32 But the declarant’s answer to a question may still 

be an excited utterance if the context shows that the statement 

was made without conscious reflection.33

Based on the circumstances presented in this case, including 

Gorden’s observations of Valentine while she was in the ambulance, we conclude that Valentine’s statement was made under 

the stress of the startling event. Before Valentine herself was 

shot, she saw King’s face when he was shot. Further, Valentine 

was in the house while the gun was fired multiple times, littering the house with gun shells. When questioned, Valentine 

was in an ambulance on her way to the hospital with a gunshot 

wound and facing an unknown medical outcome. Although 

Valentine’s statement was made in response to questions from 

law enforcement, and despite her maintaining sufficient composure to answer the questions, we find that she was still under 

the stress of being shot and the stress of viewing another person being shot. Thus, we find that Valentine’s statement was 

made without conscious reflection and that the excited utterance exception does apply. Therefore, Nolt’s assignment of 

error is without merit.

(c) Failure to Investigate and Present 

Certain Aspects of Nolt’s Defense

Nolt also asserts that his trial counsel was ineffective because 

he failed to “adequately investigate and present several aspects 

of Nolt’s defense.” Nolt sets forth the following list of “trial 

counsel’s [alleged] failures”:

• Trial counsel failed to elicit Nolt’s testimony that, in the 

last hour of the drive between Kansas City and Omaha 

on October 10, 2015, Hassell and King discussed murdering Nolt and burying him in the Nevada desert 

32 Id.

33 Id.
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while they believed Nolt was asleep in the back seat of 

the vehicle;

• Trial counsel failed to formally compel either the State 

or OnStar to produce an email purportedly sent from 

OnStar to law enforcement pertaining to the GPS data 

obtained by law enforcement, which prejudiced Nolt 

because law enforcement officers engaged in illegal 

behavior when obtaining said GPS data, including representations to OnStar of having a search warrant before 

it was issued by the lower court;

• Trial counsel failed to formally compel either the State 

or the . . . car rental company to divulge all communications, particularly those in which law enforcement obtained, and [the car rental company] revealed, 

the Vehicle Identification Number (VIN) for the 2015 

Chevrolet Impala at issue during trial. Such communications would have revealed that law enforcement 

officers engaged in illegal behavior when obtaining 

said VIN and other information from [the car rental 

company].34

(i) Failure to Compel OnStar Emails

We first address Nolt’s claim that his trial counsel was ineffective for failing to compel the State or OnStar to produce 

certain emails. Although Nolt does not explain how the OnStar 

emails would have benefited him at trial, we presume, as does 

the State, that Nolt’s claim is that it would have revealed that 

the GPS search was premature and illegal. The State argues 

that even if such was true, the GPS evidence would have 

still been admissible under the inevitable discovery doctrine. 

We agree.

[18] Under the inevitable discovery doctrine, evidence 

obtained without a valid warrant is nonetheless admissible if 

the State shows by a preponderance of the evidence that the 

34 Brief for appellant at 28-29.
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police would have obtained the disputed evidence by proper 

police investigation entirely independent of the illegal investigative conduct.35 Here, the GPS data was obtained the same 

day that the warrant was issued. Thus, even if the GPS data 

was obtained before the warrant was issued, the police would 

have obtained the same evidence pursuant to the warrant that 

was issued. Accordingly, the GPS evidence would still have 

been admissible and the result of the trial the same.

(ii) Communications With Car Rental 

Company Regarding Impala

We also conclude that the result of the trial would have been 

the same if Nolt’s trial counsel had moved to compel the State 

or the car rental company to disclose their communications. 

Although Nolt fails to explain how the communications would 

have benefited him at trial, we presume, as does the State, that 

Nolt’s claim is that the communications would have revealed 

that the information obtained about the Impala, namely the 

vehicle identification number (VIN), were obtained via an illegal search and seizure. However, as the State points out, a warrant was not needed because the police communication with 

the car rental company was not a search and obtaining the VIN 

was not a seizure for Fourth Amendment purposes.

[19-21] The Fourth Amendment to the U.S. Constitution 

protects individuals against unreasonable searches and seizures 

by the government.36 A “‘search [for Fourth Amendment purposes] occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable,’”37 and 

35 See State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006). See, also, State

v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992) (holding that fruits 

of search were properly admitted because if defendant would not have 

consented, then affidavit would have been completed and search warrant 

obtained to perform the same search).

36 See State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).

37 Id. at 695, 884 N.W.2d at 439 (citing Kyllo v. United States, 533 U.S. 27, 

121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001)).
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a “‘seizure’ of property occurs when there is some meaningful 

interference with an individual’s possessory interests in that 

property.”38 Here, Nolt could not have had an expectation of 

privacy with regard to the police communication with the car 

rental company, because there is no evidence that it agreed to 

keep any information about Nolt’s rental car confidential and 

no evidence that confidentiality is typical in such situations. 

Furthermore, Nolt had no possessory interest in the VIN of 

the Impala. The car rental company owned the car and was 

free to convey information about it to police. Moreover, as a 

general rule, a person has no reasonable expectation of privacy 

in places readily accessible to the public,39 and federal law 

requires that the VIN be placed in the plain view of someone 

outside the automobile.40 Fourth Amendment protections were 

not invoked by the car rental company’s voluntarily providing the VIN to police. Thus, a warrant was not required, and 

Nolt’s trial counsel was not ineffective for failing to move to 

compel the State or the car rental company to disclose their 

communications.

We note that to the extent that Nolt had an expectation of 

privacy or possessory interest in the contents or location of 

the Impala, no Fourth Amendment violation occurred because 

police obtained a warrant for both the GPS search and the subsequent seizure of the Impala in Arizona.

(iii) King and Hassell’s Alleged 

Discussion of Murdering Nolt

Finally, Nolt argues that his counsel was ineffective for 

failing to elicit Nolt’s testimony regarding an alleged conversation between King and Hassell about their plan to murder 

38 United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 

2d 85 (1984).

39 See Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 

576 (1967) (“[w]hat a person knowingly exposes to the public, even in his 

own home or office, is not a subject of Fourth Amendment protection”).

40 New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986).
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Nolt. Nolt argues that the conversation contributed to the circumstances surrounding his decision to use deadly force and 

that the introduction of such evidence would have bolstered 

his self-defense theory.

[22,23] When reviewing a claim of ineffective assistance 

of counsel, trial counsel is afforded due deference to formulate trial strategy and tactics, and an appellate court will not 

second-guess reasonable strategic decisions by counsel.41 When 

considering whether trial counsel’s performance was deficient, 

there is a strong presumption that counsel acted reasonably.42

The presumption can be rebutted without an evidentiary hearing only when a decision by counsel cannot be justified as a 

result of a plausible trial strategy.43

We conclude that it is plausible that Nolt’s counsel decided 

to not elicit testimony about the alleged conversation in order 

to save Nolt’s credibility. While it is conceivable that evidence 

of the alleged conversation might have helped the jury understand why Nolt would be quick to think that Hassell was reaching for a gun to harm him, the same evidence also serves to 

undermine Nolt’s credibility. As pointed out by the State, if the 

jury had been presented with evidence that King and Hassell 

had discussed their plans to kill Nolt in Nolt’s presence, then 

the jury might wonder why Nolt did not try to escape to safety 

when he was outside Valentine’s house by himself.

Nolt’s argument would have more merit if the district court 

had not instructed the jury on Nolt’s claim of self-defense. 

But here, the court instructed the jury on self-defense and the 

jury apparently disbelieved Nolt’s testimony because it found 

him guilty.

Because any benefit provided by evidence of the alleged 

conversation would be negated by the blow to Nolt’s credibility, we conclude that it is plausible that Nolt’s counsel did 

41 See State v. Nesbitt, 279 Neb. 355, 777 N.W.2d 821 (2010).

42 Id.

43 State v. Brown, 268 Neb. 943, 689 N.W.2d 347 (2004).
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not elicit testimony about the alleged conversation for this 

reason. Thus, Nolt’s trial counsel was not ineffective for failing to adduce this evidence, and Nolt’s assignment of error is 

without merit.

3. Cumulative Erro

Finally, Nolt alleges that the cumulative effect of the ineffective assistance of trial counsel deprived Nolt of his constitutional right to a fair trial. But, as explained above, we found 

no merit to any of Nolt’s ineffective assistance of counsel 

claims. Thus, the alleged errors could not have been cumulative, and Nolt’s last assignment of error is without merit.

VI. CONCLUSION

For the foregoing reasons, Nolt’s assignments of error 

are without merit, and the judgment of the district court is 

affirmed.

Affirmed

Wright, J., not participating.